McCain v. Director, Office of Workers Compensation Programs

DAVID A. NELSON, Circuit Judge,

concurring in part and dissenting in part.

NELSON, Circuit Judge.

Whether the ALJ acted unreasonably in refusing to credit Dr. Rubio’s opinion that Mr. McCain had pneumoconiosis is a close question, and one on which I am willing to defer to my colleagues. But if McCain established the existence of pneumoconiosis, I am not at all sure that it was impermissible for the ALJ to conclude, as he did, that McCain still could not establish that his disability was due. even in part, to such pneumoconiosis. The Benefits Review Board having found it unnecessary to reach the causation question, I would remand the case to let the Board address that issue in the first instance.

My concern about causation is informed by the following facts, among others:

— McCain should not be presumed to have had nine or ten years’ exposure to coal dust, as Dr. Rubio obviously believed he should; we must take it as given that only four years’ exposure could be established.

— After he left coal mining as a young man, McCain spent 40 years operating heavy equipment for an asphalt and gravel company; in that employment he was exposed to dust, gases or fumes for the entire 40 years.

—• Before he gave up smoking after a heart attack in 1981, McCain had smoked the equivalent of a pack of cigarettes a day for 49 '‘h years.

— Because of his arteriosclerotic heart disease, McCain underwent an angioplasty in 1981 and open heart surgery (a quadruple coronary bypass) in 1993.

That a man with this history should now be totally disabled is hardly surprising. Nor would his disability be surprising even if the man had never done a day’s work in the coal industry.

When McCain saw Dr. Rubio in September of 1993. soon after the open heart surgery, Dr. Rubio diagnosed him as having, among other things, severe chronic obstructive pulmonary disease (a condition the doctor never equated with pneumoconiosis), in addition to “a very well-documented history of pneumoconiosis.... ” More than two years later, when asked by *203 McCain’s lawyer how he could tell that McCain had pneumoconiosis from working as a coal miner as distinguished from chronic obstructive pulmonary disease (COPD) caused by smoking, Dr. Rubio referred to “a significant restrictive component which would certainly go with pneumoconiosis rather than COPD.” 1 While acknowledging that McCain’s x-rays did not demonstrate pneumoconiosis, Dr. Rubio pointed out that “there are cases that present as pure fibrosis” not visible in x-rays. McCain’s was such a case, Dr. Rubio concluded: “he does not have any evidence of hyperventilation and historically I think that the exposure [to coal dust] is adequate and prolonged enough to justify the clinical diagnosis [of pneumoconiosis].”

The exposure Dr. Rubio had in mind was nine or ten years, not four years — a circumstance that, in hindsight, obviously raises a question as to the validity of the diagnosis. And Dr. Rubio’s statement that McCain “does not have any evidence of hyperventilation” is inexplicable. In a note on a pulmonary function test performed in December of 1993. Dr. Rubio said that McCain’s lung volumes “show marked hyperventilation.” A note by Dr. Rubio interpreting an October 1994 test also speaks of “marked hyperventilation,” and Dr. Rubio’s report of May 17, 1995, refers to “significant hyperventilation.”

In a report prepared in January of 1996, Dr. Rubio said this:

“I have already stated that in my professional opinion Mr. McCain has the diagnosis of simple pneumoconiosis based on his pulmonary function test criteria and x-ray findings which I believe supports the diagnosis of simple pneumoconiosis. “The patient did smoke in the past historically, however, restrictive patterns are more commonly seen with pneumoconiosis than with obstructive pulmonary disease.”

If Dr. Rubio was suggesting here that the diagnosis was supported by “x-ray findings,” among other things, he was clearly mistaken. And the mistake, if mistake it was, did not stand alone. In a report issued in September of 1996, after a hearing where McCain had been told there was insufficient proof of disability due to pneumoconiosis, Dr. Rubio expressed himself as follows:

“Mr. McCain certainly has a clear cut history of having worked the mines from 1944 to 1953 and again worked an additional 8 months later on. Clinically and radiographically and pulmonary function test wise my opinion without a doubt is that he has pneumoconiosis as part of his diagnosis. There is no doubt that he has other medical illnesses but I do not think that those are the main players in his shortness of breath.” (Emphasis supplied.)

“Radiographically,” of course, is a reference to x-rays — and the x-rays, again, were negative for pneumoconiosis. 2

*204 Another reason to question Dr. Rubio’s diagnosis is found in a report the doctor sent McCain’s lawyer in March of 1997, after benefits had been denied on the ground that the medical evidence did not support a finding of pneumoconiosis. Writing to “basically document my disagreement with the denial of his pneumoconiosis,” Dr. Rubio had this to say:

“It is my professional opinion that this attending physician and being a pulmonary specialist I do believe that clearly there is sufficient evidence of physiologic impairment and historical background to justify his disability based on pneumoconiosis. It should be pointed out again that Mr. McCain has had no other significant pulmonary insult during his lifetime to merit the number on his pulmonary function test.” (Emphasis supplied.)

As a layman, I must say, I am at a loss to understand how a man with McCain’s history could be said to have “had no other significant pulmonary insult during his lifetime ----” Asked about this at oral argument, McCain’s lawyer readily acknowledged that Dr. Rubio’s statement was less than helpful.

Somewhat more helpful to McCain, in my opinion, is the report Dr. Rubio wrote in March of 2000, after the Benefits Review Board had remanded the case to the ALJ. Given an opportunity, for the first time, to comment on the significance of the ALJ’s finding that only four years of coal dust exposure could be established, Dr. Rubio said this:

“Even though he worked in the coal mines legally for 4 years it should be noted that he did work an additional 5 years for his father before he was officially under the Social Security and Medicare system. Therefore his insult to coal dust was longer than the 4 years and even if it was 4 years he still could have suffered during that time sufficient insult to result in the current impairment that I described in my previous letter.”

Dr. Rubio obviously disagreed with the ALJ’s four-year finding, but he opined here that even four years’ exposure could have caused pneumoconiosis. This was not good enough for the ALJ. who found that Dr. Rubio was being “equivocal” in stating that four years’ exposure “could” have caused pneumoconiosis. The Board found no error in this respect. Eliding the question of pneumoconiosis, vel non, with the question of causation, the Board held that “[t]he administrative law judge ... acted within his discretion in finding that Dr. Rubio’s opinion was too equivocal to support a finding of pneumoconiosis.”

I am not persuaded that it was permissible to find Dr. Rubio equivocal in using the word “could” rather than “would.” Dr. Rubio had said from the beginning that McCain had pneumoconiosis, among other conditions. This diagnosis was based in part on the understanding — -admittedly never abandoned — that McCain had been exposed to coal dust for nine or ten years. But when asked, in effect, whether his diagnosis would change if the exposure had only lasted four years. Dr. Rubio pretty clearly intended to respond in the negative. In context, I think, his “could” had to mean “could and did.”

Whether it was permissible for the ALJ to reject Dr. Rubio’s diagnosis presents a much closer question, in my view. Although two consultants retained by the *205 Department of Labor — Drs. Burton and Fritzhand — disagreed with Dr. Rubio, the Board held (correctly, I believe) that the ALJ “failed to adequately consider whether the opinions of Drs. Burton and Fritzhand were sufficiently reasoned.” Given this fact, and given that the record discloses nothing about the qualifications of either consultant except that each was an M.D. and Dr. Fritzhand was a Fellow of the American Academy of Disability Evaluating Physicians, whereas Dr. Rubio — the treating physician — was certified by the American Board of Internal Medicine with a pulmonary subspecialty, the Benefits Review Board was doubtless justified in declining, as it did, to give any weight to what Drs. Burton and Fritzhand said. (In any event, the Board’s analysis has not been challenged in a cross-petition for review.)

The fact that the opinions of Drs. Burton and Fritzhand have been put on the shelf, however, does not mean that the opinion of Dr. Rubio must be accepted by default. Recent Sixth Circuit caselaw makes it quite clear that “there is no requirement that a treating physician’s opinion be deemed controlling.” Wolf Creek Collieries v. Director, OWCP, 298 F.3d 511, 521 (6th Cir.2002). The opinion of a treating physician deserves special consideration, to be sure, but it must still be evaluated “in light of its reasoning and documentation, other relevant evidence and the record as a whole.” See Peabody Coal Co. v. Groves, 277 F.3d 829, 834 (6th Cir.2002) (quoting 20 C.F.R. § 718.104 (d)(5)). The Board presumably applied this standard here when it held that “the administrative law judge properly found that Dr. Rubio’s opinion was insufficient to support a finding of pneumoconiosis.”

Had I been reviewing this case as a single judge. I might not have disagreed with the Board’s holding. But despite the manifest deficiencies of Dr. Rubio’s explanation of the basis for his opinion — deficiencies some of which are more significant than others — Dr. Rubio’s opinion is arguably a “reasoned” one, and it does represent the firmly held view of a treating physician who was well qualified in the relevant medical specialty. I shall not dissent from my colleagues’ conclusion that the ALJ was required to find that McCain succeeded in showing the existence of pneumoconiosis.

Still, given the debatable quality of the evidence supporting a finding of pneumoconiosis, it seems to me that whether McCain’s disability was at least in part the result of his pneumoconiosis is a question that deserves careful attention. It is entirely possible, after all, that McCain had a very mild case of coal miner’s pneumoconiosis that did not contribute in any way to his disability. 3 Yet the question of causation has received no attention at all from the Benefits Review Board.

Having concluded that it was open to the ALJ to find that McCain had not established the existence of pneumoconiosis, the Board simply pretermitted the question of whether, assuming the existence of pneumoconiosis, the disease necessarily played a causative role in McCain’s disability. If the disease could not be shown to have played such a role, as I understand it, McCain would not be entitled to benefits.

Given the current state of the record, I must dissent from this court’s summary *206 award of benefits. In my view, the case should be remanded to the Board with instructions to resolve the causation question. 4 Should McCain be dissatisfied with the answer ultimately given to that question, he would have every right, of course, to file another petition for review.

. None of Dr. Rubio’s earlier reports, of which there were several, mentioned this "restrictive component,” although there was a reference in May of 1995 to "decreased diffusion capacity.” A physician at the Kettering Medical Center, where McCain had his open heart surgery, reported the following impressions shortly before the operation:

"Severe obstructive pulmonary disease which may be related primarily to the long history of smoking. A component of revers-

ible airways changes is suggested, although this would not appear predominant. Mild restriction cannot be ruled out, although this is suggested only by the vital capacity." (Emphasis supplied.)

The Kettering doctor concluded that McCain would probably not be at excessive risk from surgery.

. In a report dated December 15, 1997, similarly, Dr. Rubio wrote that “[i]t is my professional opinion based on his history of expo *204 sure, and based on his pulmonary function and his chest x-ray that this patient in fact has suffered long term harmful effect from his history of mining during the years of 1944 to 1953.”

. Such a contingency would be consistent, I believe, with the impressions recorded by the physician at the Kettering Medical Center who read McCain's pulmonary function report as indicating that heart surgery would not pose an excessive risk.

. My colleagues suggest, in footnote 21 of the majority opinion, that a remand to the Board would be inappropriate because McCain's claim for benefits has already been before the Board twice. But while the Board has repeatedly reviewed the ALJ’s finding as to the existence of pneumoconiosis, the salient fact is that the Board has never had to address the issue of causation. The ALJ found that pneumoconiosis, assuming its existence, could not be shown to have been a cause of McCain's

disability — and that finding, if I may be forgiven for repeating myself, has never been considered by the Board at all, much less considered extensively.

My colleagues are prepared to do the Board’s work for it. I am not. It seems to me that we ought to let the Board say, in the first instance, whether the ALJ could properly resolve the causation question as he did.