Eastover Mining Co v. Williams

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Eastover Mining Co. v. Williams et al. No. 01-4064

ELECTRONIC CITATION: 2003 FED App. 0261P (6th Cir.)

File Name: 03a0261p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus,

FOR THE SIXTH CIRCUIT GREENBERG & TRAURIG, Washington, D.C., for

_________________ Petitioner. Fred M. Busroe, Jr., CARTER & BUSROE,

Harlan, Kentucky, for Respondents.

EASTOVER MINING CO ., X

_________________

Petitioner, -

-

OPINION

- No. 01-4064

v. _________________

-

>

, CLAY, Circuit Judge. Petitioner Eastover Mining Co.

DOROTHY S. WILLIAMS and - appeals an order issued by the Benefits Review Board of the

DIRECTOR, OFFICE OF - United States Department of Labor, finding Respondent

WORKERS ’ COMPENSATION - Dorothy Sue Williams, widow of Decedent Gordon Williams,

PROGRAMS, UNITED STATES - entitled to an award of benefits pursuant to the Black Lung

DEPARTMENT OF LABOR, - Benefits Act, 30 U.S.C. §§ 901-45. For the reasons set forth

Respondents. - below, we REVERSE the Benefits Review Board.

-

N FACTS

On Petition for Review from an Order of the Benefits Decedent was born on January 13, 1927 and died on

Review Board, United States Department of Labor. July 13, 1993. According to his death certificate, Decedent

No. 00-0362 BLA. died from a pulmonary embolism due to Chronic Obstructive

Pulmonary Disease (“COPD”), itself caused by an acute

Submitted: July 16, 2003 gastrointestinal bleed. Decedent smoked between one pack

and one-half pack of cigarettes daily for approximately four

Decided and Filed: July 31, 2003 decades before quitting in 1986. Decedent worked as a

surface miner for thirty-seven years, retiring in 1983 when the

Before: KEITH, SUHRHEINRICH, and CLAY, Circuit mine where he worked ceased operations. He applied for and

Judges. ultimately received federal black lung benefits, although state

officials denied his claim for occupational disability benefits.1

1

W ith respect to his federal black lung benefits, an ALJ found the

existence of pneum oconiosis established bec ause conflicts in the record

among qualified physicians created “true do ubt” that the ALJ resolved in

1

No. 01-4064 Eastover Mining Co. v. Williams et al. 3 4 Eastover Mining Co. v. Williams et al. No. 01-4064

Decedent’s relevant medical history begins in April of In March of 1983, Dr. A. Dahhan examined Decedent in

1982, when Dr. Jerry Woolum diagnosed Decedent with connection with his living miner disability claim. Although

COPD and acute bronchitis.2 Woolum has board Dahhan believed Decedent suffered from a pulmonary or

certifications in general practice and surgery. Decedent saw respiratory impairment, Dahhan thought Decedent’s

many other physicians in connection with his claim for living continued smoking caused the problem because the pattern of

worker benefits and these doctors ordered numerous x-rays. impairment disclosed in pulmonary function studies, the

Sixteen different readers analyzed these images, and only one absence of x-ray evidence of pneumoconiosis, and the

of the six B-readers board-certified in radiology felt any film presence of occasional crepitations on clinical examination

showed pneumoconiosis.3 are all indicia of disability induced by smoking, not coal dust.

On October 20, 1984, Dr. Robert Penman examined

Decedent. Although Penman had neither B-reader

Decedent’s favor, b ecause pneumoco niosis is a progressive disease, and certification nor board certification in radiology, Penman

because the ALJ concluded that a single doctor’s opinion could not diagnosed Decedent with pneumoconiosis based on

outweigh a greater number of medical opinions supporting Decedent. The

Supreme Court and other c ourts, including this one, have subseq uently Decedent’s x-rays. Penman concluded that Decedent’s

discredited the fact-finding methods employed in the 1983 p roceeding. suffered pulmonary impairment partly from pneumoconiosis

See, e.g., Dir., OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81 and partly from smoking. Penman could not separate the two

(1994) (rejec ting the “true doubt” rule); Nat’l Mining Ass’n v. Dep’t of risk factors.

Labor, 292 F.3d 849, 863-64 (D.C. Cir. 2002) (rejecting the view that

latent pneumoconiosis is generally progressive based on the Department

of Labor’s co ncessio n that latent pneumoco niosis rarely progresses);

Dr. William Anderson examined Decedent on

Woo dwa rd v. Dir., OWCP, 991 F.2d 314, 321 (6th Cir. 1993) (rejecting November 28, 1984. Anderson found no evidence of

reliance on numerical superiority as a valid metho d to resolve conflicts in pneumoconiosis in Decedent’s x-rays. Anderson instead

the record). suspected COPD due to smoking. Anderson also diagnosed

2

hypertensive cardiovascular disease, mixed psychoneurosis

Decedent first saw W oolum in 1979 . and osteoarthritis.

3

A “B-reader” has d emo nstrated proficiency in assessing and

classifying x-rays for pneumoconiosis by successfully completing an

examination cond ucted by or o n behalf of the D epartment of He alth and

Human Services. 20 C.F.R. § 718.202(a)(1)(ii)(E). A board-certified

radio logist has received a certification in radiology from either the

American Board o f Radiology or the American Osteopathic Association.

Id. at § 718.202(a)(1)(ii)(C). Four of the six readings performed by fully-

credentialed analysts involved films taken between 1983 and 1985. T he

remaining two fully-credentialed analysts reviewed films from July of did a non-b oard -certified B -reader. A board-certified radiologist (but not

1993, less than two weeks before Decedent died. The one fully- a B-reader) found no pneumoc oniosis based on film from August and

credentialed reader who found pneumoconiosis reached his conclusion No vember o f 198 3, as did a B -reader lacking bo ard certification.

based on the analysis of an October 18 , 198 3 film, and he later partly Although this muddle of different certifications and different films

recan ted his d iagnosis. unde rstandably tends to create confusion, one ma tter is com pletely clear:

Other readers with less expertise analyzed the x-rays with conflicting only one of the six fully-credentialed readers found pneumoconiosis. He

results. Four readers with no formal expertise in radiology whatsoever did so based on a film taken in 1983 and later expressed reservations

saw pneumoc oniosis in films taken in October and November of 1984, as about his opinion.

No. 01-4064 Eastover Mining Co. v. Williams et al. 5 6 Eastover Mining Co. v. Williams et al. No. 01-4064

Dr. Clarke4 examined Decedent on December 17, 1984. He for a cyst, hypertension, a hernia, acute influenza, peripheral

diagnosed pneumoconiosis by x-ray as well as severe vascular disease, acute bronchitis, pneumonia, a transient

restrictive and obstructive lung disease based on pulmonary ischemic attack, several episodes of respiratory distress,

function studies. Clarke declared that pneumoconiosis carotid artery disease, acute gastrointestinal bleeding, a

rendered Decedent totally disabled. urinary tract infection, and acute septicemia. In July of 1990,

Woolum diagnosed end-stage COPD. During Decedent’s

Dr. Ballard Wright examined Decedent on March 30, 1985. final hospitalization, Woolum reported massive upper

Wright read one of Decedent’s x-rays as positive for gastrointestinal bleeding, erosive gastritis, and active peptic

pneumoconiosis and interpreted his pulmonary function ulcer disease. Decedent died despite surgical intervention

studies as showing severe restrictive and obstructive intended to stop the bleeding.

impairment, but concluded that smoking caused Decedent’s

poor pulmonary function. The hospital discharge papers included these final

diagnoses: (1) pulmonary embolism; (2) post-inflammatory

With respect to the Woolum, Decedent’s “treating pulmonary fibrosis; (3) emphysema; (4) acute upper GI bleed

physician,” pneumoconiosis is mentioned only briefly in the (ulcer); (5) acute anemia due to severe blood loss; (6) gastritis

“previous history” section of his report.5 Pneumoconiosis with hemorrhage; (7) cor pulmonale; and (8) peripheral

appears in Woolum’s medical record twice more—first, in vascular disease. During his treatment of Decedent, Woolum

December of 1986, when Decedent reported anxiety and never conducted regular pulmonary function studies or blood

depression related to his pursuit of black lung benefits, and gas tests, nor did Woolum diagnose pneumoconiosis.

second, in January of 1987, when Woolum again listed

pneumoconiosis in the “previous history” portion of a medical PROCEDURAL HISTORY

report. These are the only references to pneumoconiosis

Woolum recorded. Respondent filed for survivor’s benefits on August 2, 1993,

two weeks after Decedent’s death. On January 24, 1994, after

Over the next eleven years between Decedent’s initial visit administrative processing by the Department of Labor

to Woolum and his eventual death, Woolum treated Decedent (“DOL”), a claims examiner denied Respondent’s claim

because she failed to establish Decedent died from

pneumoconiosis. On May 25, 1994, DOL reversed itself and

4 found the evidence sufficient. At Petitioner’s request, the

Like many of the physicians discussed herein, Dr. Clarke’s first

name does not app ear in the Joint Append ix. claim proceeded to an Administrative Law Judge (“ALJ”) for

trial.

5

To assist Deced ent in ob taining living miner disa bility benefits

imme diately p rior to his retirement, Woolum wrote on June 8, 1983 that On May 8, 1995, the ALJ issued a decision and order

Decedent suffered from chronic pep tic ulcer d isease w ith acute denying Respondent’s claim. ALJ Charles P. Rippey

exacerbation, diverticular disease of the colon with periodic considered a February 24, 1994 report by Woolum that

exacerb ations, hypertension contro lled with med ication, and m anic

depression, requiring chronic medication. At a deposition on August 22, claimed:

1985, Wo olum declared that Decedent’s x-rays revealed evidence of

pneumo coniosis and that it contributed to his COP D. W oolum offered no [Decedent’s] pulmonary disease progressed during the

basis for this conclusion during the depo sition or in any of D eced ent’s years I cared for him and the last several years of his life

med ical records.

No. 01-4064 Eastover Mining Co. v. Williams et al. 7 8 Eastover Mining Co. v. Williams et al. No. 01-4064

he was in respiratory failure . . . most of the time. He Finally, ALJ Rippey refused “to ignore the surrounding

was hospitalized several times requiring ventilatory circumstances.” (Id.) Judge Rippey “infer[red] that Dr.

support to keep him alive. The terminal event was likely Woolum’s March 10, 1995 opinion was given following a

a pulmonary embolus. Unfortunately, an autopsy was discussion with [Respondent’s] counsel, and that Dr. Woolum

not granted by the family. I have no problem stating that wanted to say all that he could to strengthen [Respondent’s]

this gentleman was disabled secondary to his lung case.” (J.A. at 73.)

disease of which pneumoconiosis, in my mind, was

certainly a contributing factor. Petitioner filed a timely appeal to the Benefits Review

Board (“BRB”), which vacated ALJ Rippey’s decision on

(J.A. at 72.) Before trial, however, ALJ Rippey met with both April 24, 1996. The BRB rejected ALJ Rippey’s

sides and informed Respondent’s counsel that this letter alone characterization of Woolum’s second opinion as a shift or

did not constitute sufficient proof. departure from his initial conclusion; rather, the BRB termed

Woolum’s new opinion a “clarification” of his earlier

At trial, Respondent introduced a new letter from Woolum conclusion. (J.A. at 67.) The Board also refused to find that

dated March 10, 1995. This time, Woolum concluded, the timing of Woolum’s second letter made Woolum’s

“within a reasonable degree of medical probability,” that statements less reliable. The BRB thus remanded the case to

pneumoconiosis “hastened [Decedent’s] death.”6 (Id.) a new ALJ for further consideration.

Although ALJ Rippey gave “extra weight to the opinion of

Dr. Woolum because he was the treating physician,” ALJ The new ALJ, Clement J. Kichuk, gave little weight to

Rippey based his decision to deny benefits on several factors. Petitioner’s experts. Instead, holding for Respondent, ALJ

First, the March 10, 1995 opinion conflicted with his Kichuk argued that:

February 24, 1994 letter. Second, the March 10, 1995 letter

failed to specify “in what matter the pneumoconiosis hastened [i]t is apparent from the voluminous medical reports that

[Decedent’s] death.” (Id.) Judge Rippey asked, rhetorically, Dr. Woolum had [Decedent] under close and constant

whether “it led to his development of an embolus earlier than treatment over a period of fourteen years which provided

it would otherwise have developed? Did the pneumoconiosis him with an outstanding opportunity to determine the

cause death earlier than would otherwise have occurred once exact nature and cause of his patient’s pulmonary and

the embolus developed?” (Id.) Third, ALJ Rippey noted that respiratory impairment with reliance upon repeated tests,

the March 10, 1995 letter stated only that Woolum could evaluations, and observations of response to proscribed

conclude with a reasonable degree of medical “probability” medicines and therapy.

that the pneumoconiosis hastened the death, as opposed to the

usual language, “with a reasonable degree of medical (J.A. at 61.) This time, Petitioner appealed to the BRB.

certainty.” (Id.) Although the BRB initially affirmed ALJ Kichuk, the BRB

remanded the case to ALJ Kichuk following Petitioner’s

motion for reconsideration. Specifically, the BRB found that

ALJ Kichuk based his decision on the “true doubt” test that

6

W oolum hypothesized that, although the pulmonary embolus

directly caused the miner’s death, pneumoconiosis hastened his dem ise

because the miner’s “lack of oxygen [and] his retained carbon dioxide all

played an effect on all parts of his body.” (J.A. at 277.)

No. 01-4064 Eastover Mining Co. v. Williams et al. 9 10 Eastover Mining Co. v. Williams et al. No. 01-4064

the Supreme Court found impermissible in Director, OWCP chronic basis—a finding suggesting COPD due to smoking,

v. Greenwich Collieries, 512 U.S. 267, 280-81 (1994).7 not pneumoconiosis. According to Sargent:

On the second remand, Petitioner introduced evidence that In my opinion, with a reasonable degree of medical

radiologists who examined Decedent’s x-rays found no certainty, [Decedent] had severe chronic obstructive

evidence of pneumoconiosis. Importantly, Petitioner offered pulmonary disease secondary to cigarette smoking. This

the analysis of Dr. A. Dahhan, a physician board-certified in is the diagnosis put forth by Dr. Woolum. In fact, coal

internal medicine and pulmonary medicine who was one of worker’s pneumoconiosis is not mentioned in Dr.

the many doctors to physically examine Decedent in the early Woolum’s diagnostic impressions either at the time of

1980s. Dahhan stated that Decedent died due to an upper GI admission or time of discharge. Chronic obstructive

bleed, possibly caused by the steroids he took for pulmonary disease and pulmonary emphysema can cause

bronchospasms.8 After reviewing all x-rays and medical severe lung disease without characteristic chest x-ray

records, Dahhan concluded: changes of pneumoconiosis. Therefore, I believe the

cause of this miner’s respiratory impairment was

There is insufficient objective evidence to justify the pulmonary emphysema due to cigarette smoking, and not

diagnosis of coal worker’s pneumoconiosis . . . . [H]is due to coal worker’s pneumoconiosis.

death was contributed to greatly by his advanced chronic

obstructive lung disease with no evidence that his death (J.A. at 284.) Sargent also stressed that even assuming

was contributed to or hastened by his exposure to coal Decedent had pneumoconiosis, it did not cause his death.

dust or coal worker’s pneumoconiosis. Sargent wrote:

(J.A. at 280.) Dr. Dale Sargent, board certified in pulmonary Very clearly, this man died of an acute event

diseases and critical care, rendered an opinion similar to (gastrointestinal bleeding) during the time he was

Dahhan’s. Sargent noted that Decedent’s blood gases showed hospitalized in July 1993. There is no post mortem

severe hypoxemic hypercapnic respiratory failure on a examination, so the cause of the death is conjectural.

Nevertheless, this man had been bleeding recurrently

during his hospitalization and it is certainly possible that

he died from acute gastrointestinal bleeding. Dr.

7 Woolum thought that another possibility for cause of

As noted, under the now-discredited “true doubt” test, a claimant

could establish the existence of pneumoco niosis if conflicts in the record death was pulmonary embolism. None of the physicians

among qualified physicians created “true doubt” about the presence of the caring for the patient at this point indicated that

disease. [Decedent] died due to either his lung disease or to coal

8 worker’s pneumoconiosis. Therefore, the cause of death

Dahhan p re vio usly examin ed Decedent in M arch o f 198 3, in is either gastrointestinal bleeding or pulmonary

connection with his living miner claim. Although Dahhan believed

Decedent suffered from a pulmonary or respiratory impairment, Dahhan

embolism, neither of which have been shown to be

thought Decedent’s continued smoking caused the problem because the caused by pneumoconiosis or chronic obstructive

pattern of impairment disclosed in pulmonary function studies, the pulmonary disease.

absence of x-ray evidence of pneumoconiosis, and the presence of

occasional crepitations on clinical exam ination a ll indicated disability

induced by smoking, no t coal d ust.

No. 01-4064 Eastover Mining Co. v. Williams et al. 11 12 Eastover Mining Co. v. Williams et al. No. 01-4064

(J.A. at 285.) In his decision, ALJ Kichuk disregarded the (J.A. at 35.) ALJ Kichuk added that he did not believe

conflicting x-ray analyses, observing that the “evidence of Woolum’s opinion was a “gratuity extended to a patient by a

record does not indicate that [Respondent] has established the sympathetic treating physician.” (Id.)

presence of complicated coal workers’ pneumoconiosis by

chest x-ray.” (J.A. at 31.) Judge Kichuk also noted the lack When the BRB affirmed, Petitioner timely appealed to this

of any biopsy or autopsy evidence to support a diagnosis of Court.

pneumoconiosis.

DISCUSSION

Nevertheless, ALJ Kichuk found Respondent’s position

more compelling. ALJ Kichuk said that Woolum’s opinion: This appeal presents issues of administrative practice and

procedure that are mixed questions of law and fact. We

[was the] most reasoned and persuasive . . . because it review questions of law de novo. Peabody Coal Co. v. Greer,

includes the most comprehensive analysis of all the 62 F.3d 801, 804 (6th Cir. 1995) (“This Court has plenary

elements of the miner’s occupational and medical authority to review the Board's legal conclusions.”) (citing

history. Moreover, Dr. Woolum personally treated the Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1119 (6th

miner and was his principal caregiver for fourteen (14) Cir.1984)). To the extent we must review factual conclusions

years, from 1979, until [Decedent] passed away in July as well, we do so with much greater deference. 33 U.S.C.

of 1993. His treatment of [Decedent] over the years is § 921(b)(3). This Court will affirm an ALJ’s factual findings

fully and painstakingly documented in the record, which when substantial evidence supports those conclusions.

includes, but is not limited to, thirteen (13) Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230-31 (6th

hospitalizations (at least five for acute respiratory failure) Cir. 1994). Where, however, an ALJ has improperly

and each time conducting chest x-rays, EKGs, and characterized the evidence or failed to account of relevant

arterial blood gas studies. From January of 1990, Dr. record material, deference is inappropriate and remand is

Woolum also diagnosed [Decedent] with cor pulmonale required.9 Dir., OWCP v. Rowe, 710 F.3d 251, 255 (6th Cir.

and end-stage chronic obstructive pulmonary disease. 1983). From the outset, we note that claimants have the

burden of proof in black lung benefit proceedings. The Black

I accord greatest weight to Dr. Woolum’s opinion, not Lung Benefits Act, 30 U.S.C. §§ 901-62 (1994), creates an

simply because he was the miner’s treating physician for

many years, but because he based his medical opinion

upon numerous objective studies obtained during the 9

Technica lly, this Court is reviewing the BRB ’s decision affirming

miner’s multiple hospital admissions for acute the ALJ, no t the ALJ’s decision itself. Thus, we do not consider whether

respiratory distress. In sum, Dr. Woolum specifically the BRB’s decision was supported by substantial evidence, but whether

identified the studies and observations upon which he the BR B correctly conclude d that substantial evidence suppo rted the

relied and the conclusions he reached are consistent with ALJ ’s decisio n. See, e.g., Zimmerma n v. D ir., OW CP , 871 F.2d 564, 567

(6th Cir. 19 89); Bizzarri v. Consolida tion Coal Co., 775 F.2d 751, 753

and supported by the underlying objective evidence of (6th Cir. 1985). The stand ards o f review are the same. Cross Moun tain

record. Coal, Inc. v. Wa rd, 93 F.3d 211, 215 (6th Cir. 1996) (“The standards of

review for the BRB and this court are the same.”) (citing Welch v. B enefits

Review Bd., 808 F.2d 443, 445 (6th Cir.1986) (per curiam)). This Court

reviews the legal issues de novo but affords deference to relevant factual

findings.

No. 01-4064 Eastover Mining Co. v. Williams et al. 13 14 Eastover Mining Co. v. Williams et al. No. 01-4064

adversarial administrative procedure designed to require Department of Labor (DOL) regulations help further

mining companies to pay those miners (or the survivors of describe “pneumoconiosis” by providing an illustrative listing

those minors) who legitimately suffer from a class of different of diseases that pneumoconiosis includes:

coal dust-related pulmonary injuries commonly categorized

as pneumoconiosis. Petitioner is eligible for benefits if For the purpose of the Act, pneumoconiosis means a

pneumoconiosis caused or “hasten[e]d the miner’s death.”10 chronic dust disease of the lung and its sequelae,

20 C.F.R. § 718.205(c)(5). Congress defined including respiratory and pulmonary impairments,

“pneumoconiosis” as a “chronic dust disease of the lung and arising out of coal mine employment. This definition

its sequelae, including respiratory and pulmonary includes, but is not limited to, coal workers’

impairments, arising out of coal mine employment.” 30 pneumoconiosis, anthracosilicosis, anthracosis,

U.S.C. § 902(b) (1994). anthrosilicosis, massive pulmonary fibrosis, progressive

massive fibrosis, silicosis, or silicotuberculosis, arising

out of coal mine employment.

10 20 C.F.R. § 718.201 (1997). As this regulation makes clear,

In its entirety, the app licable regulation read s:

legal “pneumoconiosis” encompasses medical conditions

(c) For the purpose of adjudicating survivors' claims filed on or other than clinical pneumoconiosis. See, e.g., Nance v.

after January 1, 1982 , death will be co nsidered to be due to Benefits Review Bd., 861 F.2d 68, 71 (4th Cir. 1988). Clinical

pneumo coniosis if any of the follow ing criteria is met:

or medical pneumoconiosis is a lung disease caused by

(1) W here competent medical evidence establishes that fibrotic reaction of the lung tissue to inhaled dust that is

pneumoconiosis was the cause of the miner's death, or generally visible on chest x-ray films. See, e.g., Usery v.

Turner-Elkhorn Mining Co., 428 U.S. 1, 6-7 (1976). Legal

(2) W here p neum oco niosis was a substantially contributing pneumoconiosis includes all lung diseases meeting the

cause or factor leading to the miner's death or where the

death was caused by complications of pneumoconiosis, or

regulatory definition of any lung disease that is significantly

related to, or aggravated by, exposure to coal dust. See, e.g.,

(3) W here the presump tion set forth at § 7 18.3 04 is Hobbs v. Clichfield Coal Co., 917 F.2d 790, 791 (4th Cir.

applicable. 1990).

(4) Ho wever, survivo rs are not eligible for benefits where Under DOL regulations, a claimant may establish legal

the miner's death was caused by a traum atic injury or the

principal cause of death was a medical condition not related pneumoconiosis by any of four different methods of proof:

to pneum oconiosis, unless the evidence establishes that (1) x-ray evidence; (2) autopsy or biopsy evidence;

pneumo coniosis was a substantially contributing cause of (3) evidence of complicated medical pneumoconiosis or

death. progressive massive fibrosis; or (4) reasoned and documented

medical opinions. 20 C.F.R. § 718.202(a)(1)-(4). As noted,

(5) Pneumo coniosis is a "substantially contributing cause"

of a miner's death if it hastens the miner's death.

the claimant bears the burden of proof. Greenwich Collieries,

512 U.S. at 281. The presence of evidence favorable to the

20 C.F.R. § 718.205. The presump tions in § 718.30 4 apply only when a claimant or even a tie in the proof will not suffice to meet that

claimant can offer certain medical evidence, and Respondent does not burden. Id.

claim that any of the presump tions applies in this case. See 20 C.F.R.

§ 71 8.30 4.

No. 01-4064 Eastover Mining Co. v. Williams et al. 15 16 Eastover Mining Co. v. Williams et al. No. 01-4064

Despite a certain degree of lingering confusion among the claimant’s medical condition.”11 Id. at 1967. The Court

courts of appeals, it has become overwhelmingly evident that explained in detail:

the testimony of the “treating physician” receives no

additional weight. Sometimes termed the “treating physician The question whether a treating physician rule would

rule,” claimants have argued that the treating physician’s increase the accuracy of disability determinations under

analysis should receive greater significance in ALJ decisions ERISA plans . . . seems to us one the Legislature or

(if not dispositive weight) relative to analyses performed by superintending administrative agency is best positioned

other experts. to address. As compared to consultants retained by the

plan, it may be true that treating physicians, as a rule,

In addition to the black lung context, the “treating physician have a greater opportunity to know and observe the

rule” plays a role in Social Security proceedings pursuant to patient as an individual. Nor do we question the . . .

regulations that stipulate that the Commissioner of Social concern that physicians repeatedly retained by benefits

Security must give special weight to the claimant’s treating plans may have an incentive to make a finding of ‘not

physician when determining whether a claimant deserves disabled’ in order to save their employers money and to

disability benefits. See 20 C.F.R. §§ 404.1527(d)(2), preserve their own consulting arrangements. But the

416.927(d)(2) (2002). Courts have also applied the “treating assumption that the opinions of a treating physician

physician rule” in disability determinations under employee warrant greater credit than the opinions of plan

benefit plans covered by the Employee Retirement Income consultants may make scant sense when, for example, the

Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-53. See, relationship between the claimant and the treating

e.g., Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 533 physician has been or short duration, or when a specialist

(6th Cir. 2003), overruled by Black & Decker Disability Plan engaged by the plan has expertise the treating physician

v. Nord, 123 S.Ct. 1965 (2003) (Ginsburg, J.) (criticizing, in lacks. And if a consultant engaged by a plan may have

an opinion by a unanimous Court, the usefulness of granting an “incentive” to make a finding of “not disabled,” so a

deference to the opinion of a treating physician). treating physician, in a close case, may favor a finding of

“disabled.” Intelligent resolution of the question of

In Black & Decker Disability Plan v. Nord, 123 S.Ct. at whether routine deference to the opinion of a claimant’s

1969, the Supreme Court recently reversed a Ninth Circuit treating physician would yield more accurate disability

decision, Nord v. Black & Decker Disability Plan, 296 F.3d

823, 831 (9th Cir. 2002), that afforded deference to treating

physicians in ERISA-related disability determinations.

11

Although Black & Decker dealt with ERISA, the unanimous As noted, Social Security benefit determinations are governed by

Court disapproved of the “treating physician rule” with regulations that require de ference to treating physicians, see 20 C.F.R.

language that criticizes the principle itself, rather than its §§ 404 .152 7(d)(2), 4 16.9 27(d)(2 ), while neither ERISA nor Black Lung

regulations contain a similar requirement. The Black & Decker Court

operation in an ERISA context. See Black & Decker, 123 noted that deference to treating physicians makes m ore sense in the Social

S.Ct. at 1971. As Justice Gisburg explained, ERISA Security context because “[p]resumptions employed by the [Social

regulations that require a “full and fair” assessment of claims Security] Comm issioner’s regulations grow out of the need to administer

“do not command plan administrators to credit the opinions a large b enefits system efficiently.” Id. at 1971 (quotation omitted). This

of treating physicians over other evidence relevant to the rationa le is inapplicable to the black lung bene fits scheme, which affects

dram atically fewer people and whose remaining claimants will decrease

naturally as time passes.

No. 01-4064 Eastover Mining Co. v. Williams et al. 17 18 Eastover Mining Co. v. Williams et al. No. 01-4064

determinations, it thus appears, might be aided by may give weight to the treating physician’s opinion when

empirical investigation of the kind courts are ill-equipped doing so makes sense in light of the evidence and the record,

to conduct. but may not mechanistically credit the treating physician

solely because of his relationship with the claimant”); Griffith

Id. at 1971 (internal quotations and citations omitted). The v. Dir., OWCP, 49 F.3d 184, 187 (6th Cir. 1995) (citing

Court thus notes that treating physicians may have strong pro- Tussey for the Court’s conclusion that “under these

claimant biases and lack the expertise held by non-treating circumstances, the ALJ was not required to give greater

doctors. These critiques of the “treating physician rule” apply weight to the opinion of the treating physician”).

with equal force to the notion that treating physicians should

receive deference in black lung proceedings. Other circuits have also rejected the treating physician rule

in black lung litigation. See, e.g., Kennellis Energies, Inc. v.

In fact, the courts of appeals, including this one, have often Hallmark, __ F.3d __, 2003 WL 21464596, at *6 (7th Cir.

recognized that there is no “treating physician rule” in black 2003) (“[A] preference or the treating physician’s opinion . . .

lung cases, although this Court’s jurisprudence is somewhat has been rejected by this Circuit.”) (citations omitted);

equivocal. In Tussey v. Island Creek Coal Co., 982 F.2d 1036 Peabody Coal Co. v. McCandless, 255 F.3d 465, 469 (7th

(6th Cir. 1993), this Court wrote that “opinions of treating Cir. 2001) (calling a treating physician preference

physicians are entitled to greater weight than those of non- “irrational,” in part because “[t]reating physicians often

treating physicians.” Id. at 1042. Subsequently, however, we succumb to the temptation to accommodate their patients (and

withdrew from the language in Tussey, explaining that Tussey their survivors) at the expense of third parties such as

“did not suggest that treating physicians should automatically insurers, which implies attaching a discount rather than a

be presumed to be correct—we indicated that their opinions preference to their views”); Lango v. Dir., OWCP, 14 F.3d

should be ‘properly credited and weighed.’”12 Peabody Coal 573, 576-77 (3d Cir. 1997) (finding treating physician’s

Co. v. Groves, 277 F.3d 829, 834 (6th Cir. 2002) (quoting conclusory statement that coal miner’s pneumoconiosis

Tussey, 982 F.2d at 1042). In another case more recent than hastened his death did not support black lung benefits claim).

Peabody Coal, we unambiguously stated that “the As the Fourth Circuit explained:

misconceived ‘treating physician presumption’ does not

exist.” Wolf Creek Collieries v. Dir., OWCP, 298 F.3d 511, Neither this circuit nor the Benefits Review Board has

521 (6th Cir. 2002) (emphasis added); see also Jericol ever fashioned either a requirement or a presumption that

Mining, Inc. v. Napier, 301 F.3d 703, 709 (6th Cir. 2002) treating or examining physicians' opinions be given

(quoting Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, greater weight than opinions of other expert physicians.

861 (D.C. Cir. 2002), for the proposition that ‘“[t]he We have often stated that as a general matter the opinions

consensus among courts has been that an agency adjudicator of treating and examining physicians deserve especial

consideration. We stated, for example, in Hubbard v.

Califano, 582 F.2d 319, 323 (4th Cir.1978), that "[we]

12 place[ ] great reliance on a claimant's treating physician,"

Judge Kennedy still dissented from Peabody Coal v. Groves,

explaining that she saw “no reason why a treating physician’s opinion that and, citing Hubbard, in King v. Califano, 615 F.2d 1018,

one condition caused or contributed to another should be accepted in the 1020 (4th Cir.1980), that "[we] place[ ] great reliance on

face of exp ert op inions to the contrary, at least where there is no logical the conclusions of a claimant's examining physician." In

explanation for doing so offered by the A LJ.” 2 77 F .3d at 837 (Kenned y,

J., dissen ting).

neither case, however, did we suggest, much less hold,

No. 01-4064 Eastover Mining Co. v. Williams et al. 19 20 Eastover Mining Co. v. Williams et al. No. 01-4064

that the opinions of treating or examining physicians adjudication officer must give consideration to the

must be accorded greater weight than opinions of other relationship between the miner and any treating

physicians. It is, of course, one thing to say that we give physician whose report is admitted into the record.

great weight to the treating or examining physician's Specifically, the adjudication officer shall take into

opinion; it is quite another to say that as a matter of law consideration the following factors in weighing the

we give greater weight to such an opinion than to opinion of the miner's treating physician:

opinions by other physicians. The ALJ therefore was not

required to defer to Dr. Soliva's diagnoses or to accord (1) Nature of relationship. The opinion of a physician

them greater weight than the opinions of the other who has treated the miner for respiratory or pulmonary

physicians. conditions is entitled to more weight than a physician

who has treated the miner for non-respiratory

Grizzle v. Pickands Mather & Co./Chisolm Mines, 994 F.2d conditions;

1093, 1097-98 (4th Cir. 1993); see also Island Creek Coal

Co. v. Compton, 211 F.3d 203, 212 (4th Cir. 2000) (“An ALJ (2) Duration of relationship. The length of the

may not discredit a physician’s opinion solely because the treatment relationship demonstrates whether the

physician did not examine the claimant.”). Thus, most courts physician has observed the miner long enough to

do not afford additional deference to treating physicians. obtain a superior understanding of his or her condition;

The Department of Labor recently promulgated regulations (3) Frequency of treatment. The frequency of

with respect to the role treating physicians should play in physician-patient visits demonstrates whether the

black lung benefit determinations, but these rules do little physician has observed the miner often enough to

more than explain that sometimes a treating physician may obtain a superior understanding of his or her condition;

“have a thorough understanding of a miner’s condition,” but and

in other cases, ALJs should not rely on the opinions of

treating physicians. See 20 C.F.R. § 718.104(d)(2002). (4) Extent of treatment. The types of testing and

Rejecting “automatic acceptance” of the treating physician’s examinations conducted during the treatment

opinion, the DOL intended the rule “to force a careful and relationship demonstrate whether the physician has

thorough assessment of the treating relationship.” obtained superior and relevant information concerning

Regulations Implementing the Federal Coal Mine and Safety the miner's condition.13

Act of 1969, as Amended, 65 FED . REG . 79,920, 79,932 (Dec.

20, 2000) [hereinafter Implementing Regulations]. To

effectuate this end, the DOL’s regulation states:

(d) Treating physician. In weighing the medical

evidence of record relevant to whether the miner suffers,

or suffered, from pneumoconiosis, whether the

pneumoconiosis arose out of coal mine employment, and 13

whether the miner is, or was, totally disabled by The regulation did not become effective until December 20, 2000,

pneumoconiosis or died due to pneumoconiosis, the so the ALJ did not have its benefit when he made his decision. The BRB,

however, issued the decision presently under review on January 31, 2001.

No. 01-4064 Eastover Mining Co. v. Williams et al. 21 22 Eastover Mining Co. v. Williams et al. No. 01-4064

20 C.F.R. § 718.104(d) (2001). The regulation says nothing “the thoroughness evident in its consideration, the validity of

about prioritizing a treating physician’s perspective;14 rather, its reasoning, its consistency with earlier and later

the regulation expects ALJs to analyze the nature and duration pronouncements, and all those factors which give it power to

of the doctor-patient relationship along with the frequency persuade”). For instance, a highly qualified treating physician

and extent of treatment. This is similar to the kind of critical who has lengthy experience with a miner may deserve

analysis an ALJ should apply when considering any expert tremendous deference, whereas a treating physician without

opinion. The DOL further expects ALJs to weigh the report the right pulmonary certifications should have his opinions

of a treating physician “against all other relevant evidence in appropriately discounted. The case law and applicable

the record.” Implementing Regulations, 65 FED . REG . at regulatory scheme make clear that ALJs must evaluate

79,934. treating physicians just as they consider other experts.

A simple principle is evident: in black lung litigation, the As explained, Respondent may prove her case through

opinions of treating physicians get the deference they deserve autopsy or biopsy evidence, x-ray evidence, evidence of

based on their power to persuade. Cf. Skidmore v. Swift & complicated medical pneumoconiosis or progressive massive

Co., 323 U.S. 134, 140 (1944) (affording an administrative fibrosis, or reasoned and documented medical opinions. 20

agency pronouncement only the weight it deserved in light of C.F.R. § 718.202(a)(1)-(4). Since Respondent offered no

autopsy or biopsy evidence, we may move directly to

Decedent’s x-rays.

14

Contrast the black lung regulation to the Social Security rule that

deals with treating physicians: Writing that the “evidence of record does not indicate that

[Respondent] has established the presence of complicated

Generally, we give more weight to opinions from your treating coal workers’ pneumoconiosis by chest x-ray,” the ALJ

sources, since these sources are likely to be the medical never relied on x-ray evidence. (J.A. at 31.) This is

professiona ls most able to provide a detailed, longitudinal

picture of your medical impairment(s) and may bring a unique

unsurprising given the paucity of x-ray analyses that support

perspective to the medical evidence that cannot be obtained from Respondent’s position. Only one of the six fully-credentialed

the objective m edica l findings alone or from reports of readers found pneumoconiosis, and he did so based on a film

individual examinations, such as consultative examinations or taken ten years before Decedent died.15 (J.A. at 30-31.) Less

brief hosp italizations. If we find that a treating source's opinion

on the issue(s) of the nature and severity of your impairm ent(s)

is well-supported by medically acceptable clinical and laboratory 15

diagnostic techniques and is not inconsistent with the other And even the ALJ gave that read er’s opinion “little or no we ight”

substantial evidence in yo ur case record, we will give it because Simmons, the reader:

controlling weight.

vacillates in his deposition testimony as to whether he believes

20 C.F.R. § 404.152 7(d)(2). This further exemplifies the relevance of the the miner had pneumoconiosis. Despite his status as a board-

distinction the Black & Decker Court drew between ERISA and Social certified radiologist and a B reader, he was unable to make a

Security. The Court, in effect, excused the treating physician rule in the final determination on the existence or non-existence of coal

Social Security context because of the above-quoted regulatory mandate. workers’ pneumoconiosis (CW P), as evidenced by his testimony.

See Black & Decker, 123 S.Ct. at 1971. The black lung situation, He first states that he read the chest x-ray as positive for CWP,

however, is much more like the ERISA issue before the Black & Decker but then states that his was probably “overreading.”

Court beca use no regulation mandates that either plan administrators or

ALJs handling black lung cases give treating physicians deference. (J.A. at 32.)

No. 01-4064 Eastover Mining Co. v. Williams et al. 23 24 Eastover Mining Co. v. Williams et al. No. 01-4064

qualified x-ray analysts reached myriad results, but the ALJ revealing severe restrictive and obstructive defects and

permissibly considered the readers’ respective qualifications arterial blood gas studies that indicated substantial

and appropriately discounted the opinions of those not fully impairments. On this basis, the ALJ gave greater weight to

qualified. See Staton v. Norfolk & W. Ry., 65 F.3d 55, 59 (6th Wright’s opinion “on the issue of the existence of

Cir. 1995). pneumoconiosis.” (J.A. at 35.) But Wright’s opinion is

troubling because he only maintains board certifications in

In addition to Woolum’s two letters, the ALJ considered anesthesiology and pain management, neither of which is

opinions from eight other physicians. For simplicity, one can germane here. Moreover, Wright testified that

group these eight physicians into two categories: those pneumoconiosis was a substantial and contributing factor that

Respondent argues support her (Clarke, Penman, Powell, and led to the problems detected by the pulmonary function

Wright); and those who back Petitioner’s position (Simmons, studies and blood gas tests, but Wright also stated that

Powell, Anderson, Sargent, and Dahhan). cigarette smoking was the predominant cause of Decedent’s

lung disease. Wright testified:

As the ALJ appropriately recognized, three of the opinions

offered by Respondent’s group (Clarke, Penman and Powell) COUNSEL: Getting right down to the nitty-gritty in

have very little significance because they “did not conduct this, Doctor, you don’t think this man’s

complete pulmonary evaluations of the miner” and “these very poor pulmonary function is a result of

physicians based their opinions on the x-ray evidence, which [medical] pneumoconiosis, do you?

I have previously found not sufficient to establish the

existence of CWP [Coal Workers’ Pneumoconiosis].”16 (J.A. WRIGHT: No.

at 32-33.) As we have concluded before, merely restating an

x-ray does not qualify “as a reasoned medical judgment.” COUNSEL: What is your opinion as their cause? [sic]

Cornett v. Benham Coal, Inc., 27 F.3d 569, 576 (6th Cir.

2000). Furthermore, an ALJ may not rely on a doctor’s WRIGHT: His chronic obstructive lung disease with

opinion that a patient has medical pneumoconiosis when the emphysema.

physician bases his opinion entirely on x-ray evidence the

ALJ has already discredited. Island Creek, 211 F.3d at 211- COUNSEL: And in your opinion, what is the most

12; Sahara Coal Co. v. Fitts, 39 F.3d 781, 783 (7th Cir. probable or predominant cause of that

1994). disease?

Although still problematic, Wright offered the most WRIGHT: The predominant cause is probably

persuasive testimony on Respondent’s behalf. He based his cigarette smoking.

conclusion partly on a putatively positive x-ray taken on

March 30, 1985, but also on pulmonary function studies (Dep. 21 at 362.) Even if one understands Wright to mean

that smoking caused most of the problem, but medical

pneumoconiosis still contributed to Wright’s poor pulmonary

condition—that says nothing about the ultimate issue, which

16

Powell and P enman evid ently based the ir conclusions on film taken is whether legal pneumoconiosis hastened Decedent’s death.

on November 26, 1984, and Clarke based his analysis on x-rays taken the Recall that the ALJ concluded his discussion of Wright’s

following day.

No. 01-4064 Eastover Mining Co. v. Williams et al. 25 26 Eastover Mining Co. v. Williams et al. No. 01-4064

testimony by explaining that he gave great weight to Wright’s a pulmonary embolism; and (2) neither pneumoconiosis nor

opinion “on the issue of the existence of pneumoconiosis.” COPD causes either gastrointestinal bleeding or pulmonary

(J.A. at 35) (emphasis added). Wright never testified that embolism. Therefore, Sargent concluded that

pneumoconiosis (legal or medical) hastened Decedent’s pneumoconiosis, even if it existed, did not cause the miner’s

demise. death.

The conclusions reached by Petitioner’s group of experts The ALJ also struggled to dispatch with Dahhan’s opinion.

are somewhat more useful. The ALJ reasonably discounted Dahhan, board-certified in pulmonary medicine, found no

Simmons’ contribution because Simmons seemed “equivocal medical pneumoconiosis. The ALJ’s analysis of Dahhan’s

at best.” (J.A. at 32.) The ALJ also discredited Anderson’s reasoning is somewhat desultory, but he seems to criticize

opinion because he did not do pulmonary function studies on Dahhan for “fail[ing] to adequately explain why the miner’s

the miner and only “suspected” smoking caused the COPD. 37 year [mining] history has nothing to do with his lung

Sargent’s opinion, however, is more helpful, because Sargent, condition,” and for neglecting that COPD falls within the

board-certified in pulmonary medicine, expressly concluded definition of “legal” pneumoconiosis. (J.A. at 34.) It makes

that pneumoconiosis did not cause the miner’s death. The no sense, however, to assume that because Dahhan does not

ALJ criticized Sargent’s analysis because Sargent never explain why Decedent’s work as a miner has not caused his

examined Decedent and evidently relied on an incomplete lung impairment, then his work as a miner must have caused

medical file that did not include pulmonary function studies. his lung impairment.17 Furthermore, although Dahhan

Nevertheless, Sargent concluded that concluded that the miner had COPD, only COPD caused by

coal dust constitutes legal pneumoconiosis. See 20 C.F.R.

Very clearly, this man died of an acute event § 718.201(a)(2). Otherwise, everyone who developed COPD

(gastrointestinal bleeding) during the time he was from smoking would have legal pneumoconiosis. Dahhan

hospitalized in July 1993. . . . Dr. Woolum thought that concluded that the miner’s “death was contributed to greatly

another possibility for cause of death was pulmonary by his advanced chronic obstructive lung disease with no

embolism. . . . Therefore, the cause of death is either evidence that his death was contributed to or hastened by his

gastrointestinal bleeding or pulmonary embolism, neither exposure to coal dust or coal worker’s pneumoconiosis.”

of which have been shown to be caused by (J.A. at 280) (emphasis added.)

pneumoconiosis or chronic obstructive pulmonary

disease. Thus, Dahhan did not, as the ALJ claims, ignore COPD.

Rather, Dahhan stated that coal dust did not cause the COPD.

(J.A. at 285.) Again, the ultimate question is not whether Most important, Dahhan appropriately addressed the real

Decedent had medical or legal pneumoconiosis, but whether issue when he explained that “[Decedent’s] death would have

legal pneumoconiosis hastened his death. Even assuming, been at the same time and the same manner regardless of his

arguendo, that access to pulmonary function studies would

have caused Sargent to reconsider his opinion that the miner

did not have medical pneumoconiosis, this ancillary point 17

W hen Dahhan first examined Decedent in 1983, Dahhan concluded

does not implicate Sargent’s two primary conclusions that smoking caused Decedent’s pulmonary pro blems. Likewise, Sargent

articulated in the above-quoted passage: (1) the miner died of explained that Decedent’s blood gases showed severe hypox emic

an acute event, probably gastrointestinal bleeding but perhaps hypercapnic respiratory failure on a chronic basis—a finding that

indicates CO PD caused by sm oking, not pneumoconiosis.

No. 01-4064 Eastover Mining Co. v. Williams et al. 27 28 Eastover Mining Co. v. Williams et al. No. 01-4064

exposure to coal dust or the presence of occupational Woolum’s testimony suffers from several serious problems

pneumoconiosis, since it was the result of an upper GI bleed, that render his opinion an inadequate basis for the ALJ’s

[a] condition of the general public at large.” (J.A. at 281.) conclusion unless his hypothesis receives disproportionately

great weight simply because he worked as Decedent’s treating

If one analyzed the evidence without the treating physician. Since no such presumption exists, there is no

physician’s opinion, it would be evident that substantial substantial evidence supporting the ALJ’s conclusion.

evidence does not support the ALJ’s conclusion that

Respondent met her burden of proof. Consider the evidence Circumstantial factors strongly indicate that Woolum

without Woolum’s input: Respondent offered no biopsy or changed his original opinion to meet Respondent’s needs. As

autopsy reports. Five of the six fully-qualified x-ray readers summarized above, the original ALJ, Judge Rippey, held a

saw no pneumoconiosis, and the sixth (Simmons) was pre-hearing conference between the parties on February 14,

indecisive. None of the other medical evidence is incredibly 1995. At that session, ALJ Rippey told Respondent’s counsel

compelling. The dispositive question is whether legal that he found Woolum’s initial letter insufficient to establish

pneumoconiosis contributed to the miner’s death. Only two that pneumoconiosis played a role in Decedent’s death.

physicians (Sargent and Dahhan), both specialists in Woolum’s first analysis stated “that this gentleman was

pulmonary medicine, addressed this issue, and both disabled secondary to his lung disease of which

concluded that coal dust-related disorders (legal pneumoconiosis, in my mind, was certainly a contributing

pneumoconiosis) did not hasten Decedent’s death. factor.” (J.A. at 72.) Woolum did not claim pneumoconiosis

caused the miner’s death.

In fact, without Woolum’s contribution, Petitioner would

have no argument but to infer that Decedent must have After Respondent’s attorney learned that Woolum’s initial

suffered from legal pneumoconiosis because he worked for conclusion would not suffice, Woolum drafted a new letter,

decades as a miner, and since he had legal pneumoconiosis, this time reckoning that, “within a reasonable degree of

it must have contributed to his death. Since this baseless medical probability,” pneumoconiosis “hastened [Decedent’s]

statement is grossly insufficient, the supportability of the death.” (Id.) Woolum wrote the first letter on February 24,

ALJ’s conclusion depends on Woolum, the treating 1994, but did not write the second memorandum until March

physician.18 10, 1995—less than a month after the parties met with ALJ

Rippey. Woolum treated Decedent for fourtneen years, but

did not diagnose him with pneumoconiosis until after he

18 allegedly died from it.

Responde nt effectively concedes this. Again, the only relevant

issue is whether legal pneumoconiosis hastened Decedent’s death. In her

brief, Respo ndent writes:

W ith respe ct to the issue of whether p neum oco niosis hastened tidbits of x-ray and medica l evidence that she em phasizes elsewhere . The

[Deced ent’s] death, the record contains five (5) sources of death certificate lists the cause of death as a pulmonary embolism, caused

evidence, including: the treatment notes of Dr. Jerry Woolum, by COP D, itself due to an acute intestinal bleed. COPD qualifies as a type

the miner’s treating physician; the death certificate; the of legal pneumoco niosis only when caused by coal dust, not an acute

testimony of Petitioner [Decedent’s wife]; the consultative report intestinal bleed . Resp ond ent herself has no med ical knowledge and an

of Dr. Dahhan and the con sultative report of Dr. Sarge nt. obvious bias. The ALJ did not rely on her description of Decedent. That

leaves only Sargent and Dahhan, who aid Petitioner’s case, and Woolum,

(Pet’r Br. at 17.) Notably, Respondent neglects to mention the various the treating physician.

No. 01-4064 Eastover Mining Co. v. Williams et al. 29 30 Eastover Mining Co. v. Williams et al. No. 01-4064

This seems like a case in which the treating physician pneumoconiosis, his body lacked oxygen and excessively

wanted to help his patient’s family. Despite Woolum’s retained carbon dioxide. This weakened the miner, “played

almost certainly benevolent intent, the sequence of events an effect on all parts of his body,” and thereby hastened a

makes his new conclusion dubious.19 death that would have occurred anyway from the pulmonary

embolus. (Id.) Even if this is an accurate medical conclusion,

Notwithstanding Woolum’s significant credibility problem, it is legally inadequate.

there are other reasons to doubt his conclusion. First, as ALJ

Rippey noted, even in his second letter, Woolum could only Again, Petitioner must show that pneumoconiosis

conclude with “a reasonable degree of medical probability” “hasten[e]d the miner’s death.” 20 C.F.R. § 718.205(c)(5).

that pneumoconiosis contributed to the miner’s death, rather One can always claim, as Woolum did, that if

than the usual phrase, “reasonable degree of medical pneumoconiosis makes someone weaker, it makes them less

certainty.” (J.A. at 255-56.) (emphasis added.) It is unclear resistant to some other trauma. If, for instance, a miner with

what “reasonable degree of medical probability” means. The pneumoconiosis gets hit by a train and bleeds to death,

more common “reasonable degree of medical certainty” Woolum (or someone adopting his position) would argue that

already reflects the incertitude inherent in medical the pneumoconiosis “hastened” his death because he bled to

conclusions—“certainty” in medicine only means “nearly death somewhat more quickly than someone without

sure” relative to the existential sense of the word “certain.” pneumoconiosis. This is absurd, of course, and presumably

If a “medical certainty” is a conviction short of complete not what Congress meant by “hasten.” Under Woolum’s

certainty, then a “medical probability” must mean something interpretation, pneumoconiosis would virtually always

even less sure. “hasten” death to at least some minimal degree. Legal

pneumoconiosis only “hastens” a death if it does so through

Second, Woolum attempted to connect the pulmonary a specifically defined process that reduces the miner’s life by

embolism to Decedent’s mining history by surmising that, an estimable time. Woolum’s letter is conclusory and

although the pulmonary embolus directly caused the miner’s inadequate because Woolum just asserts that because (in

death, pneumoconiosis hastened his demise because the Woolum’s opinion) the miner had pneumoconiosis, the

miner’s “lack of oxygen [and] his retained carbon dioxide all disease must have hastened his death.

played an effect on all parts of his body.” (J.A. at 277.) Put

differently, Woolum argued that because Decedent had Third, the ALJ ignores Woolum’s credentials. Woolum has

no special expertise in reading x-rays, but the ALJ gave

weight to Woolum’s x-ray analysis that he did not give to the

19

fully-credentialed readers who found no evidence of medical

One could view the ALJ’s decision to cred it Woolum’s testimony pneumoconiosis. Woolum has no board certification in

despite the surrounding circumstances as a “clearly erroneous” factual pulmonary medicine, but the ALJ accepted Woolum’s

decision, but the ALJ is a judge of credibility and, however awkward the

situation, the ALJ may have b elieved W oolum alwa ys intended to express

assertion that a coal dust-related ailment contributed to the

his honest belief that legal pneumoco niosis caused the miner’s death. miner’s demise over the opinions of two board-certified

Even so, the problem with the pro ceed ings below is more legal mistake pulmonary specialists who reached the opposite conclusion.

that factual error— assum ing W oolum’s op inion d eserved so me weight,

it does not alone constitute substantial evidence in Respondent’s favor Although the DOL’s new regulations regarding treating

unless the AL J and the BRB afforded the treating physician’s opinion physicians did not take effect until after the ALJ reached his

much greater significance that its inherent persuasive va lue warrants.

No. 01-4064 Eastover Mining Co. v. Williams et al. 31 32 Eastover Mining Co. v. Williams et al. No. 01-4064

decision, they would not alter the outcome of this case. For all the aforementioned reasons, we REVERSE the

Under the new regulations, the ALJ must consider a multitude Benefits Review Board.

of factors that, viewed overall, simply ask whether the

treating physician has offered a persuasive opinion. See 20

C.F.R. § 718.104(d). In this case, he did not. To reach his

conclusion, the ALJ had to give preference to the treating

physician. Since that is impermissible, the BRB erred in

affirming the ALJ’s decision.20

20

There is another concerning issue, perhaps only a minor procedural

quirk. To receive benefits as a survivor, Respo ndent must show at least

that legal pneumoconiosis “hasten[e]d the miner’s death.” 20 C.F.R.

§ 718 .205 (c)(5). The initial opinion drafted by ALJ Kichuk concluded

that “the miner’s pneumoconiosis was a contributing factor in causing his

death.” In its second remand , the B RB instructed ALJ Kichuk “to

[re]consider whethe r the existence o f pneumo coniosis is estab lished.”

(J.A. at 47.) It seems unlikely and bizarre that the BRB could have meant

for the parties to relitigate the existence of legal pneumoconiosis but not

whether it caused the miner’s death. Put differently, it would be odd for

the BRB to have effectively concluded that “we don’t know whether the

miner had pneumoc oniosis, but if he did, it must have contributed to his

death.” On the second remand, the parties litigated both existence and

causation. The ALJ concluded that Resp ondent met her burden of

establishing the existence of legal pneumoconiosis,” but he never decided

whether he also thought Respondent met her burden of establishing that

legal pneumoc oniosis contributed to the miner’s death. Yet, in the third

BRB opinion (affirming the second remand), the BRB concluded that

“[i]nasmuch as the administrative law judge’s determination that claimant

established the existence o f pneumoc oniosis . . . and death du e to

pne um oco niosis . . . is supported by substantial evidence, we affirm the

administrative law judge’s award of survivor’s benefits.” (J.A. at 15)

(emp hasis added.) Since the ALJ opinion then under review never

concluded anything about causation, one wonders how the B RB could

affirm the ALJ’s conclusion that “death [was] due to pne umo coniosis.”

(Id.) This may render the BRB ’s third order unsupported by substantial

evidence. T he easiest solution may be to infer that the ALJ decision

following the second remand indirectly addressed both existence and

causation.

The whole issue is immaterial because Resp ondent did not offer any

evidence of causation in the first two administrative hearings that she did

not offer again in the third. And, since the third BR B o rder is prop erly

before this Court, all conclusions d rawn b y that opinion are pro perly The confusion, however, does emphasize the need for administrative

before us as w ell. bod ies to make the ir opinions clear.