Sea "B" Mining Company v. Shirley Addison

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2324

SEA “B” MINING COMPANY, c/o HealthSmart Casualty Claims

Solutions,

Petitioner,

v.

SHIRLEY ADDISON, widow of Jerry Addison, deceased; DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.

(14-0019 BLA)

Argued: December 9, 2015 Decided: July 29, 2016

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Petition for review granted; order vacated and remanded by

published opinion. Judge Agee wrote the opinion, in which Judge

Niemeyer and Judge Duncan joined.

ARGUED: Timothy Ward Gresham, PENNSTUART, Abingdon, Virginia,

for Petitioner. Victoria Susannah Herman, WOLFE WILLIAMS &

REYNOLDS, Norton, Virginia, for Respondent Shirley Addison. ON

BRIEF: Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,

Virginia, for Respondent Shirley Addison.

AGEE, Circuit Judge:

Jerry Addison applied for financial assistance under the

Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (“the Act”),

claiming that he suffered from coal-dust induced pneumoconiosis

as a result of his prior work as a coal miner. Over conflicting

medical evidence, an Administrative Law Judge (“ALJ”) found that

Addison was entitled to benefits under the Act because he had

established the existence of clinical and legal pneumoconiosis

that resulted in a total respiratory disability. Addison’s

former employer, Sea B Mining Co. (“Sea-B”), filed a petition

for review, arguing the ALJ erred in several ways which were not

harmless. For the reasons described below, we grant the

petition for review, vacate the order awarding benefits, and

remand for further proceedings. 1

I.

We begin with a brief discussion of the statutory and

regulatory framework, which provides context for the events of

this case. The Act creates an adversarial administrative

procedure designed to determine whether miners (or their

surviving dependents) qualify for compensatory benefits because

1

Addison died during the pendency of this case, and his

widow, Shirley Addison, was substituted as the party in

interest.

2

they suffer from coal dust-related pulmonary injuries, commonly

categorized as pneumoconiosis. See 30 U.S.C. §§ 901-944. The

implementing regulations define pneumoconiosis as a “chronic

dust disease of the lung and its sequelae, including respiratory

and pulmonary impairments, arising out of coal mine employment.”

20 C.F.R. § 718.201(a).

Courts recognize two forms of pneumoconiosis: “clinical”

and “legal.” See Clinchfield Coal Co. v. Fuller, 180 F.3d 622,

625 (4th Cir. 1999). 2 Clinical pneumoconiosis “consists of those

diseases recognized by the medical community as pneumoconiosis,

i.e., the conditions characterized by permanent deposition of

substantial amounts of particulate matter in the lungs and the

fibrotic reaction of the lung tissue to that deposition caused

by dust exposure in coal mine employment.” 20 C.F.R. §

718.201(a)(1). Legal pneumoconiosis, by contrast, “encompasses

a wide variety of conditions . . . whose etiology is not the

inhalation of coal dust, but whose respiratory and pulmonary

symptomatology have nonetheless been made worse by coal dust

exposure.” Clinchfield, 180 F.3d at 625. The regulations thus

define legal pneumoconiosis as “any chronic lung disease or

impairment and its sequelae arising out of coal mine

employment.” 20 C.F.R. § 718.201(a)(2).

2 This opinion omits internal marks, alterations, citations,

emphasis, or footnotes from quotations unless otherwise noted.

3

To obtain black lung benefits under the Act, a claimant

must prove by a preponderance of the evidence that: “(1) he has

[either kind of] pneumoconiosis; (2) the pneumoconiosis arose

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

respiratory or pulmonary condition; and (4) pneumoconiosis is a

contributing cause to his total respiratory disability.”

Milburn Colliery Co. v. Hicks, 138 F.3d 524, 529 (4th Cir.

1998). The parties agreed that Addison suffered from a

disabling respiratory condition that prevented further

employment. The issue below, and on review, is whether

Addison’s disability was the result of pneumoconiosis arising

out of his coal mine employment. The dispute centers around the

exclusion and consideration of certain medical evidence and the

ALJ’s conclusions in evaluating the expert medical opinions.

A claimant may establish the existence of pneumoconiosis

by, among other means, chest x-rays and medical opinion

evidence. See 20 C.F.R. § 718.202(a). In addition, “[t]he

results of any medically acceptable test or procedure . . . ,

which tends to demonstrate the presence or absence of

pneumoconiosis . . . may be submitted in connection with a claim

and shall be given appropriate consideration.” 20 C.F.R. §

718.107(a). Although the regulations group the forms of

permissible evidence into discrete categories, an ALJ must weigh

all of the evidence together when determining whether the miner

4

has established the presence of pneumoconiosis. See Island

Creek Coal Co. v. Compton, 211 F.3d 203, 208-09 (4th Cir. 2000).

II.

A.

Addison worked in the coal industry for approximately 12

years. 3 Prior to abandoning this line of work in 1981 due to a

neck fracture and arthritis, his employment consisted of stints

as a general laborer, scoop operator, and finally foreman with

Sea-B. As often occurs in these cases, Addison was a cigarette

smoker, and his smoking history far exceeds the length of his

mining career. Addison began his pack-a-day smoking habit in

1956 and stopped sometime between 2001 and 2012. The evidence

is clear that Addison suffered from a myriad of ailments during

the latter part of his life that, if not caused by smoking, were

certainly amplified by this activity. Among other things, he

had a history of arthritis, coronary artery disease,

hypertension, and diabetes.

3Addison attested that he worked in the mines for 13 years.

The parties have stipulated, however, that the length of his

coal-mining career was actually 11.7 years.

5

In March 2011, Addison filed the present claim for living

miner benefits. 4 His case was referred to a claims manager, who

found that Addison was entitled to benefits due to his prior

coal employment. Sea-B disputed the award and sought

administrative review before an ALJ.

At the ensuing hearing, Addison testified about his

employment history, explaining that he worked in “very thick

dust” while at the mines. J.A. 52. He also testified about his

decade of breathing problems, for which he had been prescribed

oxygen and other pulmonary medications. Apart from Addison’s

testimony, the parties introduced various medical evidence

concerning his condition, including (1) conflicting

interpretations of several chest x-rays; (2) three CT scans

which all read negative for pneumoconiosis; (3) the results from

pulmonary function tests and arterial blood gas studies; (4)

hospitalization and treatment records; and (5) conflicting

medical opinions from three physicians, Dr. J. Randolph

Forehand, Dr. Gregory J. Fino, and Dr. James R. Castle, all of

4

Addison first requested black lung benefits in 2004, but

his claim was denied for failure to show a totally disabling

respiratory impairment. The instant case is a “subsequent”

claim subject to denial absent proof of a change in the

applicable condition of entitlement that was unfavorably

adjudicated. 20 C.F.R. § 725.309(c). The ALJ determined that

Addison had demonstrated such a change, in that he had become

totally disabled, and Sea-B has not challenged this

determination on appeal.

6

whom agreed that Addison was totally disabled by a respiratory

impairment but differed as to its cause and type.

Dr. Forehand, who performed the Department of Labor

sponsored examination, diagnosed Addison as having both

pneumoconiosis and a non-disabling ventilatory impairment caused

by cigarette smoking. His opinion was based on an arterial

blood gas study showing impaired gas exchange during exercise, a

single 2011 chest x-ray, and Addison’s history of coal dust

exposure. Had Addison not worked in the mines, Dr. Forehand

opined, “his arterial blood gas would no doubt be normal and his

chest x-ray clean.” J.A. 104.

Dr. Fino diagnosed Addison with “idiopathic interstitial

fibrosis” that, although disabling, is “unrelated to coal dust

inhalation.” J.A. 154. As support for this opinion, Dr. Fino

cited the “marked progression” of Addison’s lung condition

between 2008 and 2011, as evidenced by the photographic

progression in the CT scans and x-rays. J.A. 153. He explained

that the worsening of Addison’s illness “occurred far too

rapidly to be consistent with coal-mine-dust inhalation.” J.A.

205. Dr. Fino further testified that although coal workers’

pneumoconiosis can cause pulmonary fibrosis, the medical

evidence did not support such a diagnosis here. “Coal dust

causes nodular fibrosis,” Dr. Fino explained, “[w]hereas this

fibrosis [Addison] has is a diffuse type” which is “completely

7

different pathologically and radiographically.” J.A. 213. Dr.

Fino also noted that Addison’s fibrosis was restrictive in

nature, which is not characteristic of pneumoconiosis. Finally,

Dr. Fino averred that he was in the best position to assess

Addison’s condition because he had the benefit of reviewing lung

imagery over time, whereas Dr. Forehand had only conducted “a

one-time review of a chest x-ray.” J.A. 207.

Dr. Castle reached a similar conclusion as Dr. Fino,

opining that Addison suffered from idiopathic pulmonary

fibrosis. After reviewing essentially the same evidence, Dr.

Castle explained that these tests revealed “linear, irregular

type opacities which are not typical of coal workers’

pneumoconiosis.” J.A. 267-68. Dr. Castle further noted that

idiopathic pulmonary fibrosis is a disease of unknown cause but

is associated with heavy cigarette smoking and not coal dust

exposure.

B.

In deciding that Addison established the existence of

pneumoconiosis, the ALJ evaluated several items of conflicting

medical evidence. He first considered the x-ray evidence, which

consisted of three chest images dated January 2009, February

2011, and May 2011. The ALJ found the first two x-rays in

equipoise as to the existence of pneumoconiosis because

similarly qualified doctors rendered conflicting interpretations

8

for each. As to the May 2011 x-ray, the ALJ noted that “Dr.

Forehand and Dr. Miller interpreted it as positive for

pneumoconiosis . . . , while Dr. Scott interpreted the same x-

ray as negative for pneumoconiosis.” J.A. 12. 5 Observing that

Drs. Miller and Scott were both equally qualified “B-readers and

board-certified radiologists,” the ALJ determined that the “May

20, 2011 chest x-ray is overall positive for clinical

pneumoconiosis” because Dr. Miller’s positive reading was

“supported by Dr. Forehand’s opinion.” Id. Dr. Forehand is a

certified B-reader but not a radiologist. 6

The ALJ next considered the CT scan evidence and noted such

scans do not fall within the category of traditional x-ray

evidence, and consequently they “must be weighed with other

acceptable medical evidence under 20 C.F.R. § 718.107.” J.A.

13-14. The ALJ further interpreted the regulations as allowing

“only one reading of ‘other evidence’ such as CT scans.” J.A.

14. Accordingly, although Sea-B had offered three CT scans

5

Drs. Miller and Scott offered testimony regarding

Addison’s chest x-rays but did not submit further opinion

evidence as to his condition.

6

The record also contained a digital x-ray of Addison’s

chest dated October 20, 2011. While Dr. Fino opined that this

x-ray was negative for pneumoconiosis, the ALJ rejected this

interpretation as inconsistent with the “implementing

regulations.” J.A. 13 (citing 20 C.F.R. §§ 718.102, 718.202).

Consequently, the ALJ did not consider this x-ray evidence in

its analysis. Sea-B has not challenged this ruling on appeal.

9

spanning 2008 to 2012, all with negative readings for

pneumoconiosis, the ALJ determined Sea-B was entitled to admit

only one scan. Without explanation, the ALJ picked Addison’s

July 2012 CT scan, which showed “no changes consistent with a

coal mine dust associated occupational disease,” as evaluated by

Dr. Fino. Id. Because Dr. Fino’s testimony was undisputed, the

ALJ concluded that “the CT scan evidence d[id] not support a

finding of clinical or legal pneumoconiosis.” Id.

After discounting Addison’s treatment and hospital records

as non-probative, the ALJ lastly turned to the conflicting

medical opinions from Drs. Forehand, Fino, and Castle. The ALJ

accorded the most weight to Dr. Forehand, finding his view

consistent with the Department of Labor’s position that coal

dust exposure and cigarette smoking are additive in producing

significant airway obstruction. J.A. 20. On this point, the

ALJ referenced 65 Fed. Reg. 79,940 (Dec. 20, 2000), which notes

that “[c]oal dust exposure is additive with smoking in causing

clinically significant airways obstruction and chronic

bronchitis.” The ALJ further found Dr. Forehand’s opinion

supported by unidentified “diagnostic testing.” J.A. 20.

The ALJ discredited the opinions of Drs. Fino and Castle

for several reasons. He found, among other things, that their

diagnoses overemphasized the fact that Addison’s pulmonary

impairment was restrictive in nature, rather than obstructive,

10

when evaluating the existence of pneumoconiosis. The

regulations, on the other hand, state that legal pneumoconiosis

includes “any chronic restrictive or obstructive pulmonary

disease arising out of coal mine employment.” 20 C.F.R. §

718.201(a)(2). The ALJ also found the opinions “based on

generalities, rather than focusing on [Addison’s] condition.”

J.A. 19. In the end, the ALJ concluded that the medical opinion

evidence weighed in Addison’s favor.

Specifically crediting his determination of the x-ray

evidence and Dr. Forehand’s report over the remaining record,

the ALJ found that Addison had established the existence of both

clinical and legal pneumoconiosis by a preponderance of the

evidence. After further finding that Addison’s pneumoconiosis

arose out of his prior employment and was a substantially

contributing cause of his disability, the ALJ awarded benefits

under the Act.

C.

Sea-B filed an administrative appeal with the Benefits

Review Board (“Board”), specifically disputing the ALJ’s finding

that the medical evidence established the existence of

pneumoconiosis. 7 In a split decision, the Board affirmed.

7

Sea-B also challenged whether the medical evidence was

sufficient to establish disability causation pursuant to 20

C.F.R. § 718.204(c). Sea-B has not raised this issue in its

(Continued)

11

Agreeing with Sea-B, the majority conceded that the ALJ

“erred in considering only one of the three CT scans [Sea-B]

submitted in its affirmative case.” J.A. 30. Ultimately,

however, the majority declined to vacate the award, finding that

Sea-B failed to show this error was harmful. Id. They faulted

Sea-B for not proffering a “specific explanation of how the

[ALJ’s] error could have made a difference.” Id. The dissent

took issue with this conclusion, explaining that, “[b]y the

majority’s reasoning, improper exclusion of evidence would

always be harmless error because it is not possible to determine

with certainty its effect on the trier-of fact’s ultimate

determination.” J.A. 34. Given this error, the dissent

explained, the ALJ’s “overall finding of the existence of

pneumoconiosis . . . is tainted” and should be sent back. J.A.

35.

The majority also rejected Sea-B’s arguments against the

ALJ’s method of weighing the medical evidence. In response to

Sea-B’s contention that the ALJ impermissibly resolved the

conflicting x-ray evidence by resorting to a headcount, the

Board concluded that he “properly considered the weight of the

positive x-ray readings in light of the readers’

petition, thus waiving further judicial review. See United

States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).

12

qualifications.” J.A. 28. The Board further sustained the

ALJ’s decision to accord “less weight to [Dr. Fino’s and Dr.

Castle’s] opinions because the[se] physicians were not able to

adequately explain the bases for their conclusions.” J.A. 32.

Following the Board’s unfavorable decision, Sea-B timely

filed the instant petition for review. We have jurisdiction

under 33 U.S.C. § 921(c).

III.

Our review of a decision awarding black lung benefits is

“limited.” Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 310

(4th Cir. 2012). We evaluate the legal conclusions of the Board

and ALJ de novo but defer to the ALJ’s factual findings if

supported by substantial evidence. See Hobet Mining, LLC v.

Epling, 783 F.3d 498, 504 (4th Cir. 2015) (“We ask only whether

substantial evidence supports the factual findings of the ALJ

and whether the legal conclusions of the Board and ALJ are

rational and consistent with applicable law.”). “Substantial

evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305

U.S. 197, 229 (1938).

Applying this standard, we do not undertake to reweigh

contradictory medical evidence, make credibility determinations,

13

or substitute our judgment for that reached below. Rather, the

duty to resolve conflicts in the evidence rests with the ALJ as

factfinder. And when conflicting evidence allows reasonable

minds to differ as to whether a claimant is disabled or has

pneumoconiosis, the responsibility for that decision falls on

the ALJ. See Harman Mining Co., 678 F.3d at 310.

That said, our deference to an ALJ’s factual findings is

not unlimited. An ALJ must still conduct “an appropriate

analysis of the evidence to support his conclusion.” Milburn

Colliery Co., 138 F.3d at 529. As this Court has previously

explained, “[u]nless the [ALJ] has analyzed all evidence and has

sufficiently explained the weight he has given to [the]

exhibits, to say that his decision is supported by substantial

evidence approaches an abdication of the court’s duty to

scrutinize the record as a whole to determine whether the

conclusions reached are rational.” Sterling Smokeless Coal Co.

v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). Thus, “[e]ven

if legitimate reasons exist for rejecting [or crediting] certain

evidence, the [ALJ] cannot do so for no reason or for the wrong

reason.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980).

Where an ALJ has incorrectly weighed the evidence or failed to

account for relevant record evidence, deference is not warranted

and remand is frequently required. See Island Creek Coal Co. v.

Compton, 211 F.3d at 213.

14

Furthermore, as a condition to appellate review, an ALJ

must “adequately explain why he credited certain evidence and

discredited other evidence.” Milburn Colliery Co., 138 F.3d at

533; see also Consolidation Coal Co. v. Filer, No. 95-1270, 1996

WL 139196, at *5 (4th Cir. Mar. 26, 1996) (“Decisions on

conflicting evidence . . . must be addressed and explained at

the administrative level before judicial review under the

substantial evidence standard can be accomplished

meaningfully.”). Although this requirement “is not intended to

be a mandate for administrative verbosity,” a reviewing court

must be able to “discern what the ALJ did and why he did

it.” Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10

(4th Cir. 1999).

With this standard of review as the backdrop, we turn to

Sea-B’s arguments.

IV.

A.

Sea-B initially contends that the ALJ’s decision to

consider only one of the three CT scans included in the record

was error requiring reversal of the ALJ’s judgment. Addison

does not argue in favor of the ALJ’s evidentiary ruling; rather,

like the Board, he contends Sea-B failed to show this error was

prejudicial.

15

We agree with the parties and the Board that the ALJ erred:

Sea-B was entitled to submit, and the ALJ was required to

consider, one reading of each CT scan under 20 C.F.R. § 718.107.

The remaining issue is whether Sea-B is entitled to any relief

for that error.

Sea-B appears to contend that this evidentiary error

requires remand without further inquiry. On brief, Sea-B argued

that when an ALJ fails to review all relevant evidence,

“[a]ppellate review is impossible.” Opening Br. 21. This

argument sweeps too broadly. Administrative adjudications are

subject to the same harmless error rule that generally applies

to civil cases. Reversal on account of error is not automatic

but requires a showing of prejudice. See Consolidation Coal Co.

v. Williams, 453 F.3d 609, 621-22 (4th Cir. 2006). The harmless

error rule applies to agency action because if the agency’s

mistake did not affect the outcome, it would be senseless to

vacate and remand for reconsideration. The rule of prejudicial

error further prevents reviewing courts from becoming

“impregnable citadels of technicality” and preserves the

relative roles of courts and agencies in implementing

substantive policy. Shinseki v. Sanders, 556 U.S. 396, 407

(2009).

The burden to demonstrate prejudicial error is on Sea-B,

the party challenging the agency action. Id. at 409. However,

16

the harmless error rule is “not . . . a particularly onerous

requirement.” Id. at 410. As the Supreme Court has explained,

“[o]ften the circumstances of the case will make clear to the

appellate judge that the ruling, if erroneous, was harmful and

nothing further need be said.” Id. Our determination of

prejudice ultimately requires “case-specific application of

judgment, based upon examination of the record,” not “mandatory

presumptions and rigid rules.” Id. at 407. In each case, an

appellate court must consider “the likelihood that the result

would have been different,” as well as how the error might

impact the public perception of such proceedings. Id. at 411.

In claiming that the error here was not harmless, Sea-B

relies on our decision in Island Creek Coal Co. v. Compton,

where we held “all relevant evidence is to be considered” in

evaluating a claim for black lung benefits. 211 F.3d at 208.

Selecting this language out of context, Sea-B posits that the

ALJ’s failure to evaluate the full spectrum of CT scan evidence

is per se prejudicial. We cannot agree. Sea-B’s proposed per

se rule is contrary to the Supreme Court’s direction not to

determine prejudice through “mandatory presumptions and rigid

rules.” Shinseki, 556 U.S. at 398. The use of such

presumptions, the Court explained, “exhibit[s] the very

characteristics that Congress sought to discourage,” because it

prevents the court “from resting its conclusion on the facts and

17

circumstances of the particular case.” Id. at 408.

Furthermore, Sea-B has not suggested any basis for concluding

that an ALJ’s failure to evaluate every piece of relevant

evidence will always shape the outcome. For example, we could

hardly find prejudice where the excluded evidence was merely

cumulative or concerned an uncontested point. See Hall v.

Arthur, 141 F.3d 844, 850 (8th Cir. 1998) (“The exclusion of

cumulative evidence, of course, is merely harmless error.”).

Although we reject Sea-B’s proposed per se rule, we agree

that the ALJ’s decision to exclude the additional CT scan

evidence was not harmless. This error affects the determination

of both clinical and legal pneumoconiosis and impacts the ALJ’s

consideration of the other evidence in this case.

The omitted CT scan evidence is unquestionably probative of

the central issue in dispute: whether Addison suffered from

pneumoconiosis. Considered in aggregate, the scans show a

timeline of the progression of Addison’s condition that neither

Dr. Forehand nor the ALJ addressed. As explained by Dr. Fino,

this progression “occurred far too rapidly to be consistent with

coal-mine-dust inhalation.” J.A. 205. While the ALJ was not

bound to accept this conclusion, he was required to consider it

and explain why he found other evidence more persuasive.

Although the ALJ acknowledged that such evidence “must be

18

weighed with other acceptable medical evidence,” J.A. 13-14, he

failed to undertake that task.

When the record contains the results of a medically

acceptable test that is probative of pneumoconiosis,

particularly where it is uncontested, the factfinder must

consider that evidence in his analysis. See Dixie Fuel Co., LLC

v. Dir., OWCP, 700 F.3d 878, 880 (6th Cir. 2012); Shelton v. Old

Ben Coal Co., 933 F.2d 504, 507 (7th Cir. 1991). That

obligation went unfulfilled here, as the ALJ failed altogether

to weigh the CT scan evidence against the remaining record in

his decision. And this error had multiple ramifications. By

excluding the CT scans, the ALJ was unable to properly weigh the

CT scan evidence as a whole, particularly as probative of

idiopathic pulmonary fibrosis and exclusive of pneumoconiosis.

Further, the CT scans would have contradicted the ALJ’s findings

as to the x-ray evidence. Consequently, the ALJ never

considered, much less explained, how the CT scan evidence would

weigh against the x-ray evidence or impact his consideration of

the overall record. See Milburn Colliery Co., 138 F.3d at 531

(explaining the general rule that an ALJ must “consider all the

relevant evidence presented”).

In a related way, the exclusion of the CT scan evidence

rendered the ALJ’s consideration of the medical opinions of Drs.

Fino and Castle inadequate. The ALJ correctly noted that

19

“[w]hen CT scans are evaluated by qualified experts . . . they

are important diagnostic tools that have resulted in major

improvements in the assessment of occupational lung disease.”

J.A. 14. And the ALJ credited both Drs. Fino and Castle as such

experts. However, the ALJ never considered the importance of

the CT scan timeline to the opinions of Drs. Fino and Castle.

See J.A. 153, 267-69. The two doctors tied their progression

diagnosis to extensive support in the medical literature and

other physical tests, none of which the ALJ addressed. Again,

the ALJ is not required to accept the medical diagnosis that is

shown by the CT scans and their analysis in the medical

opinions. But he is required to consider that evidence and

explain the reasons for finding another analysis entitled to

more weight. See King, 615 F.2d at 1020 (“Even if legitimate

reasons exist for rejecting or discounting certain evidence, the

[ALJ] cannot do so for no reason or for the wrong reason.”).

Thus, by erroneously excluding the CT scan evidence, the ALJ’s

opinion was significantly flawed on all these fronts to the

prejudice of Sea-B.

We have previously recognized that prejudice is a natural

effect of an error of this kind. See Consolidation Coal Co. v.

Brown, 230 F.3d 1351 (4th Cir. 2000); Island Creek Coal Co. v.

Groves, 246 F. App’x 842, 846 (4th Cir. 2007); see also Eastover

Mining Co. v. Williams, 338 F.3d 501, 508 (6th Cir. 2003)

20

(stating where “an ALJ has improperly characterized the evidence

or failed to account [for] relevant record material, deference

is inappropriate and remand is required”). And here, that

prejudice is magnified because it is intertwined with the ALJ’s

findings as to the x-ray evidence and the medical opinions, not

just the CT scan evidence.

Given that the record is otherwise comprised of

contradictory evidence regarding Addison’s diagnosis, this

excluded evidence could have materially affected the ALJ’s

decision. See, e.g., Carnevale v. Gardner, 393 F.2d 889, 891

(2d Cir. 1968) (“[I]t is clear that in summarizing and sifting

the evidence in this case, the Hearing Examiner totally ignored

a major piece of evidence which might well have influenced his

decision. We cannot fulfill the duty entrusted to us . . . if

we cannot be sure that he considered some of the more important

evidence presented[.]”). Rather than assessing and rejecting a

single negative CT scan, the ALJ should have weighed all three

negative CT scans along with the other credited evidence.

The error was not harmless and warrants remand to ensure

the ALJ fully considers the entire record, particularly in

relation to the opinions of Drs. Fino and Castle, who, as

discussed in more detail below, both found that these scans

affected the evaluation of the x-ray evidence and discredited a

diagnosis of pneumoconiosis. See Stout v. Comm’r Soc. Sec.

21

Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (explaining that an

error is harmless only if a court can conclude with confidence

that “no reasonable ALJ, when fully crediting the testimony,

could have reached a different [result]”).

B.

Sea-B next argues that the ALJ erred by utilizing a

headcount of the x-ray readings to conclude Addison suffered

from pneumoconiosis. Because the record is insufficiently

developed to permit appellate review of this issue, we must

vacate and remand for the ALJ to provide an explanation for his

decision. See Consolidation Coal Co., 1996 WL 139196, at *5

(“Decisions on conflicting evidence . . . must be addressed and

explained at the administrative level before judicial review

under the substantial evidence standard can be accomplished

meaningfully.”).

As noted, the ALJ considered three chest x-rays dated

January 12, 2009, February 23, 2011, and May 20, 2011, in his

pneumoconiosis analysis. He found the first two “in equipoise

as to the existence of pneumoconiosis” because “equally

qualified” B-reader radiologists had rendered contradictory

opinions on each image. See J.A. 12. Turning to the May 20,

2011 x-ray, however, the ALJ found it positive for

pneumoconiosis and stated the following:

22

There were three readings of the most recent

x-ray taken on May 20, 2011. Dr. Forehand

and Dr. Miller interpreted it as positive

for pneumoconiosis . . . , while Dr. Scott

interpreted the same x-ray as negative for

pneumoconiosis. Dr. Forehand is a B reader

but not board certified in radiology. Drs.

Scott and Miller are both dually qualified

as B-readers and board-certified

radiologists. Dr. Miller’s opinion that the

x-ray is positive for clinical

pneumoconiosis is supported by Dr.

Forehand’s opinion. Consequently, I find

that the May 20, 2011, chest x-ray is

overall positive for clinical

pneumoconiosis.

J.A. 12.

Sea-B asserted before the Board that the ALJ did not weigh

this evidence on a valid basis, but instead resolved the issue

by a headcount of expert witnesses. The Board disagreed and

upheld the ALJ’s conclusion, stating that he “properly

considered the weight of the positive x-ray readings in light of

the readers’ qualifications.” J.A. 28. The record basis the

Board referenced was its statement “that the May 20, 2011 x-ray

evidence was positive for pneumoconiosis, as it was read as

positive by both Dr. Miller and Dr. Forehand, and as negative

only by Dr. Scott.” J.A. 28.

When engaged in fact finding, administrative agencies may

not base a decision on the numerical superiority of the same

items of evidence. See Sterling Smokeless Coal Co., 131 F.3d at

441 (“By resolving the conflict of medical opinion solely on the

23

basis of the number of physicians supporting the respective

parties, the ALJ below committed . . . error[.]”). In assessing

such evidence, the ALJ must articulate specific reasons and

provide support for favoring one medical reading over another.

See Milburn Colliery Co., 138 F.3d at 536; see also Mitchell v.

OWCP, 25 F.3d 500, 508 (7th Cir. 1994) (observing that an ALJ

may not substitute his judgment for that of the medical

evidence). We have rejected the practice of simply resorting to

a numerical headcount as “hollow” and not consistent with an

ALJ’s duties in making a reasoned decision. Adkins v. Dir.,

OWCP, 958 F.2d 49, 52 (4th Cir. 1992); see also Mullins Coal

Co., Inc. of Va. v. Dir., OWCP, 484 U.S. 135, 149 n.23 (1987)

(explaining that an ALJ must “weigh the quality, and not just

the quantity, of the evidence”).

We cannot decipher from the ALJ’s sparse explanation how,

or if, he weighed the x-ray readings in light of the readers’

qualifications. To conduct appellate review, we must be able to

identify that the ALJ “has analyzed all evidence and has

sufficiently explained the weight he has given to [the]

exhibits.” Sterling Smokeless Coal Co., 131 F.3d at 439.

Without a more specific record of the ALJ’s rationale for

reaching his decision as to the May 20 x-ray, we are unable to

adequately perform our judicial review function to assure that

the ALJ’s decision is based on a “reasoned explanation.”

24

Adkins, 958 F.2d at 52. We cannot guess at what the ALJ meant

to say, but didn’t because “[e]stablished precedent dictates

that a court may not guess at what an agency meant to say, but

must instead restrict itself to what the agency actually did

say.” Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009).

Consequently, on remand, the ALJ should provide an

explanation for his decision concerning the May 20 x-ray by

explaining how he weighed the evidence “in light of the readers’

qualifications” and whether his conclusion was based on a

numerical headcount of experts. With a “reasoned explanation”

in the record, the court would then be in a position to conduct

appellate review should that issue arise again. Adkins, 958

F.2d at 52.

C.

Lastly, we turn to the ALJ’s consideration of the medical

opinion evidence, particularly in view of the disposition of the

issues involving the CT scan and x-ray evidence. As noted,

three physicians submitted reports regarding the cause of

Addison’s disability. Dr. Forehand opined that Addison suffered

from pneumoconiosis based on a physical examination in

combination with Addison’s prior occupational exposure to coal

dust. Drs. Fino and Castle, on the other hand, agreed that

Addison’s respiratory troubles were unrelated to coal dust

25

exposure. The ALJ sided with Dr. Forehand, finding his

diagnosis worthy of the greatest weight.

Although it is within the ALJ’s statutory authority to

evaluate and weigh medical opinion evidence, an ALJ may not

credit or discredit expert testimony “for no reason or for the

wrong reason.” King, 615 F.2d at 1020; see also Island Creek

Coal Co. v. Compton, 211 F.3d at 211 (“The ALJ must examine the

reasoning employed in a medical opinion in light of the

objective material supporting that opinion, and also must take

into account any contrary test results or diagnoses.”). In the

absence of an adequate explanation supporting the ALJ’s

evaluation, “to say that his decision is supported by

substantial evidence approaches an abdication of the court’s

duty to scrutinize the record as a whole to determine whether

the conclusions reached are rational.” Sterling Smokeless Coal

Co., 131 F.3d at 439-40; see also Milburn Colliery Co., 138 F.3d

at 533 (finding error where “the ALJ failed to adequately

explain why he credited certain evidence and discredited other

evidence”).

The ALJ credited Dr. Forehand’s diagnosis based on its

purported consistency with the following passage from the

preamble to the amended regulations: “Coal dust exposure is

additive with smoking in causing clinically significant airways

obstruction and chronic bronchitis.” J.A. 20 (citing 65 Fed.

26

Reg. 79,940 (Dec. 20, 2000)). It is well settled that a

factfinder may consult the Act’s preamble in assessing medical

opinion evidence. See Harman Mining Co., 678 F.3d at 314-15.

Nevertheless, the ALJ erred in relying on this passage here

because it has no bearing on Dr. Forehand’s pneumoconiosis

opinion.

Although Dr. Forehand diagnosed Addison with an obstructive

impairment, he attributed that impairment solely to cigarette

smoking and found it non-disabling. See J.A. 104. Dr.

Forehand’s diagnosis of legal pneumoconiosis, instead, was based

on an arterial blood gas study showing weakened gas exchange and

the May 2011 x-ray, which he concluded would have been different

had Addison never been exposed to coal dust. However, Dr.

Forehand never says why he reached that conclusion, particularly

since he never found coal dust exposure related to Addison’s

obstructive impairment. Quite the opposite, Dr. Forehand’s

opinion contradicts the preamble text, as he found the

obstructive respiratory impairment was attributed entirely to

smoking without any aggravation from coal dust exposure.

Because this proffered explanation for elevating Dr.

Forehand’s diagnosis is not supported, the ALJ must reevaluate

that opinion to determine the proper weight it should be given.

See Island Creek Coal Co. v. Compton, 211 F.3d at 211-12; King,

615 F.2d at 1020 (“Even if legitimate reasons exist for

27

rejecting or discounting certain evidence, the [ALJ] cannot do

so for no reason or for the wrong reason.”).

As noted earlier, the ALJ’s error as to the CT scan

evidence (and the uncertainty as to the validity of the ALJ’s

determination on the x-ray evidence) render his consideration of

the opinions of Drs. Fino and Castle infirm. Their opinions

explain in detail, with extensive test and medical literature

support, why they conclude Addison had idiopathic pulmonary

fibrosis instead of coal workers’ pneumoconiosis. A substantial

basis for those opinions was the progressive timeline of

Addison’s disease, proven by the chronology of CT scans and x-

rays, that established idiopathic pulmonary fibrosis. While the

ALJ was not required to accept their opinions, he could not have

made a reasoned decision evaluating the opinions in view of the

foundational errors regarding the medical evidence.

Finally, we note the ALJ ignored the respective

qualifications of these physicians in reaching his decision.

Dr. Forehand is a board-certified pediatrician and allergist,

whereas Drs. Fino and Castle are both board-certified in

internal medicine and pulmonary disease. “A primary method of

evaluating the reliability of an expert’s opinion is of course

his expertise[.]” Adkins, 958 F.2d at 52. The ALJ should have

given some reasoned explanation as to why Dr. Fino’s and Dr.

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Castle’s superior qualifications did not carry any weight in his

evaluation. See Milburn Colliery Co., 138 F.3d at 536.

The ALJ’s finding that Addison suffered from legal

pneumoconiosis relied heavily on the weight given to Dr.

Forehand’s opinion over that of Drs. Castle and Fino. As

explained several ways above, however, the error as to the CT

scan evidence fundamentally affected the ALJ’s capacity to reach

that conclusion. The ALJ failed to analyze all of the relevant

evidence and give a reasoned explanation for how it was weighed.

Sterling, 131 F.3d at 439-40 (“Unless the [ALJ] has analyzed all

evidence and has sufficiently explained the weight he has given

to [the] exhibits, to say that his decision is supported by

substantial evidence approaches an abdication of the court’s

duty to scrutinize the record as a whole to determine whether

the conclusions reached are rational.”). Consequently, we

conclude these errors were prejudicial to Sea-B because without

them the likelihood that the result would have been different is

significant. See Shinseki, 556 U.S. at 410 (“Often the

circumstances of the case will make clear to the appellate judge

that the ruling, if erroneous, was harmful and nothing further

need be said.”).

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V.

For all these reasons, we grant the petition for review,

vacate the Board’s decision, and remand with instructions for

the Board to return Addison’s case to the ALJ for

reconsideration consistent with this opinion.

PETITION FOR REVIEW GRANTED;

ORDER VACATED AND REMANDED

30