Westmoreland Coal Company v. Jarrell Cochran

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1839

WESTMORELAND COAL COMPANY, INCORPORATED,

Petitioner,

v.

JARRELL D. COCHRAN; DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;

DEPARTMENT OF LABOR; BENEFITS REVIEW BOARD,

Respondents.

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

(10-0522-BLA)

Argued: March 22, 2013 Decided: June 4, 2013

Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Petition for review denied by published opinion. Judge Wynn

wrote the majority opinion, in which Judge Motz joined. Chief

Judge Traxler wrote a dissenting opinion.

ARGUED: Thomas Michael Hancock, BOWLES RICE, LLP, Charleston,

West Virginia, for Petitioner. Ryan Christopher Gilligan,

WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia;

Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents. ON BRIEF: Paul E. Frampton,

BOWLES RICE, LLP, Charleston, West Virginia, for Petitioner.

Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,

Virginia, for Respondent Jarrell D. Cochran. M. Patricia Smith,

Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor,

Gary K. Stearman, Counsel for Appellate Litigation, UNITED

STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal

Respondents.

2

WYNN, Circuit Judge:

Westmoreland Coal Company, Inc. challenges an

Administrative Law Judge’s (“ALJ”) decision, affirmed by the

Benefits Review Board (the “Board”), to award black lung

benefits to Westmoreland’s former employee, Jarrell Cochran.

Because the award of benefits is supported by the record and

accords with applicable law, we must deny Westmoreland’s

petition for review.

I.

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

seq., entitles former coal miners totally disabled by

pneumoconiosis—commonly called black lung disease—to benefits.

The Act’s 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).

“[P]neumoconiosis can take two forms”: “clinical”

pneumoconiosis and “legal” pneumoconiosis. Harman Min. Co. v.

Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 308 (4th

Cir. 2012). “Clinical” pneumoconiosis “consists of those

diseases recognized by the medical community as pneumoconioses,

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

substantial amounts of particulate matter in the lungs and the

3

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 is “significantly broader

than the medical definition,” Hobbs v. Clinchfield Coal Co., 45

F.3d 819, 821 (4th Cir. 1995), and includes “any chronic lung

disease or impairment . . . arising out of coal mine employment

. . . includ[ing] . . . any chronic restrictive or obstructive

pulmonary disease,” 20 C.F.R. § 718.201(a)(2). For purposes of

the Act, “arising out of coal mine employment” means

“significantly related to, or substantially aggravated by, dust

exposure in coal mine employment.” 20 C.F.R. § 718.201(b).

A claimant under the Act can establish pneumoconiosis with

the aid of a regulatory presumption of pneumoconiosis, id. §

718.305(a), or with evidence including x-rays, biopsies, and

medical opinions from physicians “exercising sound medical

judgment, notwithstanding a negative X-ray,” id. § 718.202.

“[T]o determine whether a preponderance of all of the evidence

establishes the existence of pneumoconiosis,” ALJs must consider

all the relevant evidence together. Island Creek Coal Co. v.

Compton, 211 F.3d 203, 208 (4th Cir. 2000).

II.

For at least sixteen years between 1964 and 1995, Cochran

worked in West Virginia coal mines, most recently for

4

Westmoreland. At the mines, Cochran had various jobs—above and

below ground—working as a roof bolter, mechanic, shuttle car

operator, general laborer, and truck driver. Cochran also has a

history of smoking, approximately one pack of cigarettes per

week for twenty years.

In February 2008, Cochran filed this claim for black lung

benefits. 1 The Department of Labor awarded benefits, payable by

Westmoreland, and Westmoreland requested a formal hearing before

an ALJ.

In November 2009, the ALJ conducted a hearing on Cochran’s

claim. And in May 2010, the ALJ issued a detailed decision

awarding Cochran benefits. The ALJ found that the evidence

failed to establish that Cochran suffers from clinical

pneumoconiosis but did establish that Cochran suffers from legal

pneumoconiosis. Regarding this legal pneumoconiosis finding,

the ALJ chose to credit Dr. D. L. Rasmussen’s medical opinion

over the opinions of Dr. George L. Zaldivar and Dr. Kirk E.

Hippensteel, explaining that the latter two “primarily

concentrated on explaining why . . . the miner did not suffer

from clinical pneumoconiosis”—which does not preclude legal

pneumoconiosis—and that their conclusions were “inconsistent

1

Cochran previously filed a claim for benefits in 1995;

that claim was denied.

5

with the scientific evidence set forth” in the Preamble of the

Act’s implementing regulations. 2 J.A. 379. Further, the ALJ

found that Cochran is totally disabled as a result of his

pneumoconiosis, and thus awarded Cochran black lung benefits.

Westmoreland appealed to the Board, and in June 2011, the

Board concluded that the ALJ permissibly used the Preamble to

evaluate conflicting medical opinions about the cause of

Cochran’s disability and that substantial evidence supported the

ALJ’s ultimate finding of legal pneumoconiosis. 3 Accordingly,

the Board affirmed the ALJ’s decision and order awarding

benefits. Westmoreland now petitions this Court for review.

III.

In black lung benefits cases, this Court’s “review of the

Board’s order is limited.” Harman, 678 F.3d at 310 (internal

quotations omitted). We review “whether substantial evidence”—

i.e., “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion[,]” Consolid. Edison Co. of

NY v. NLRB, 305 U.S. 197, 229 (1938)—“supports the factual

2

“The preamble . . . sets forth the medical and scientific

premises relied on by the Department” of Labor when it amended

the black lung benefits regulations to revise the definition of

legal pneumoconiosis. Harman, 678 F.3d at 314.

3

Westmoreland did not appeal the ALJ’s finding that Cochran

suffers from a totally disabling respiratory impairment.

6

findings of the ALJ and whether the legal conclusions of the

[Board] and ALJ are rational and consistent with applicable

law,” Harman, 678 F.3d at 310 (internal quotations omitted).

“As long as substantial evidence supports an ALJ’s findings,

‘[w]e must sustain the ALJ’s decision, even if we disagree with

it.’” Id. (quoting Smith v. Chater, 99 F.3d 635, 637–38 (4th

Cir. 1996)). We are not at liberty to “substitute our judgment

for that of the ALJ” but rather must “defer to the ALJ’s

evaluation of the proper weight to accord” the evidence,

including “conflicting medical opinions.” Id. (quotation marks

omitted).

On appeal, Westmoreland argues that: (1) the evidence

derived from Dr. Rasmussen’s testimony was insufficient to

support the ALJ’s finding of legal pneumoconiosis; (2) the ALJ

failed to consider all the relevant evidence by improperly

discounting certain expert opinions; and (3) the ALJ erroneously

interpreted the Preamble to create an irrebuttable presumption

of pneumoconiosis. We address each argument in turn.

IV.

A.

We turn first to Westmoreland’s contention that Dr.

Rasmussen’s testimony was insufficient to support the ALJ’s

finding of legal pneumoconiosis. Specifically, Westmoreland

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compares Dr. Rasmussen’s testimony here to his testimony in

another black lung case, United States Steel Mining Co., Inc. v.

Director, Office of Workers’ Compensation Programs, 187 F.3d 384

(4th Cir. 1999) (“Jarrell”), in which this Court found that the

evidence in the record was insufficient to support an award of

benefits.

In Jarrell, the ALJ had awarded survivor benefits to a

claimant “relying solely” on Dr. Rasmussen’s testimony that

“[i]t is possible that [the coal miner’s] death could have

occurred as a consequence of his pneumonia superimposed upon his

chronic lung disease, including his occupational pneumoconiosis

and occupationally related emphysema” and “[i]t can be stated

that [the coal miner’s] occupational pneumoconiosis was a

contributing factor to his death.” Id. at 387, 389 (emphasis

added). This Court reversed, holding that the mere possibility

of causation was insufficient to support finding a nexus between

a claimant’s pneumoconiosis and his death.

Here, by contrast, Dr. Rasmussen did not testify that coal

mine dust or cigarette smoke could be the cause of Cochran’s

respiratory impairment. Nor did he testify that he did not know

or could not tell whether coal mine dust contributed to

Cochran’s respiratory impairment. Rather, Dr. Rasmussen

testified that both coal mine dust and cigarette smoke were

causes, affirmatively asserting “Mr. Cochran’s coal mine dust

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exposure must be considered a significant contributing factor to

his what should be described as overlap syndrome . . . and that

he does have at least legal pneumoconiosis, i.e. COPD/emphysema

caused in significant part by coal mine dust exposure.” J.A.

39.

Dr. Rasmussen stated that the effects of coal mine dust and

cigarette smoke exposure “are independent, but additive[,] with

those smokers or non-smokers who are exposed to the greatest

amount of dust exhibit[ing] the greatest impairment.” J.A. 38.

And as the ALJ correctly explained, the Act does not require

that coal mine dust exposure be the sole cause of a claimant’s

respiratory impairment. See 20 C.F.R. § 718.201(b) (defining

“arising out of coal mine employment” as “significantly related

to, or substantially aggravated by, dust exposure in coal mine

employment”); see also Consolidation Coal Co. v. Swiger, 98 F.

App’x 227, 238 (4th Cir. 2004) (affirming award of black lung

benefits in case in which experts “found that [claimants]’s

disability was caused in part by smoking and conceded that it

was difficult to differentiate between the effects caused by

smoking and the effects caused by coal mine dust”).

Given Dr. Rasmussen’s expert opinion, the ALJ’s conclusion

that Cochran’s “COPD/emphysema [is] due in part to coal mine

dust exposure” was supported by substantial evidence. J.A. 379.

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Thus, the Board did not err in affirming the ALJ’s finding of

legal pneumoconiosis.

B.

Westmoreland also argues that the ALJ erred by improperly

discounting the opinions of Dr. Zaldivar and Dr. Hippensteel in

favor of Dr. Rasmussen’s. Specifically, in deciding to credit

Dr. Rasmussen’s opinion over Dr. Zaldivar’s and Dr.

Hippensteel’s, the ALJ stated that

much of the pertinent dispute between these medical

experts centers on the etiology of the miner’s

emphysema. In this particular regard, the opinions of

Drs. Hippensteel and Zaldivar are inconsistent with

the scientific evidence set forth in the [Act’s]

Preamble . . . Thus, I give their opinions concerning

the etiology of the miner’s emphysema less credit than

Dr. Rasmussen’s.

J.A. 379. Westmoreland contends that the ALJ erred by

misinterpreting the Preamble and discrediting the testimony of

Dr. Zaldivar and Dr. Hippensteel. We disagree.

The Preamble states, in pertinent part, that medical

literature “support[s] the theory that dust-related emphysema

and smoke-induced emphysema occur through similar mechanisms . .

. .” Regulations Implementing the Federal Coal Mine Health and

Safety Act of 1969, 65 Fed. Reg. 79920, 79943 (Dec. 20, 2000).

In Harman, a recent, very similar black lung case, this Court

made plain that an ALJ may consider the Act’s Preamble in

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assessing medical expert opinions. Harman, 678 F.3d at 314–15.

We also noted that “the only other circuits to address the

question have upheld an ALJ’s invocation of the same preamble.”

Id. at 315 (citing Helen Mining Co. v. Dir., O.W.C.P., 650 F.3d

248, 256 (3d Cir. 2011) (noting that “[t]he ALJ gave less

weight” to the opinions of an employer’s expert because it was

“inconsistent with 20 C.F.R. § 718.202(a)(1)-(4) and with the

preamble to the regulations”); and Consolidation Coal Co. v.

Dir., O.W.C.P., 521 F.3d 723, 726 (7th Cir. 2008) (describing as

“sensible” the ALJ’s decision to give little weight to the

opinion of employer’s expert because, in part, it conflicted

with the Preamble’s statements on the clinical significance of

coal dust-induced COPD)).

Nevertheless, Westmoreland argues that the ALJ

misinterpreted the Preamble to mean that smoke-induced and coal

mine dust-induced respiratory impairments always are

indistinguishable. According to Westmoreland, Dr. Zaldivar and

Dr. Hippensteel relied on advancements in science and medicine

since the implementation of the Preamble that purportedly

facilitate the differentiation of coal mine dust-induced and

smoke-induced emphysema, which the ALJ supposedly ignored

because of how he interpreted the Preamble. In so arguing,

Westmoreland overstates the ALJ’s reliance on the Preamble.

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Indeed, the ALJ did not state that he would not consider

Dr. Zaldivar’s and Dr. Hippensteel’s opinions, nor did he

suggest that he was obligated to accept the scientific studies

in the Preamble over any other evidence. Rather, the ALJ

explained that he chose to give Dr. Rasmussen’s opinion more

weight in part because it aligned with the scientific findings

in the Preamble. And neither Dr. Zaldivar nor Dr. Hippensteel

testified as to scientific innovations that archaized or

invalidated the science underlying the Preamble. In fact, only

Dr. Zaldivar cited literature that post-dates the Preamble—none

of which appears to even discuss the effects of coal mine dust

exposure on the lungs.

Moreover, the ALJ did not rely solely on the Preamble for

giving less weight to Dr. Zaldivar’s and Dr. Hippensteel’s

opinions. Rather, the ALJ discredited their opinions also

because both experts “primarily concentrated on explaining why

they believed the miner did not suffer from clinical

pneumoconiosis and why clinical pneumoconiosis was not

responsible for his symptoms or impairment” without addressing

legal pneumoconiosis. J.A. 379. The evidence in the record

bears this out: For example, when Dr. Hippensteel was asked

“why do you think that Mr. Cochran’s problem is asthma as

opposed to legal pneumoconiosis,” he replied “there is no

specific association between coal mine dust exposure and the

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development or causation of asthma . . . . It has not been

associated with any other findings that would suggest that he

had developed clinical pneumoconiosis . . . .” J.A. 175.

The ALJ agreed with Dr. Hippensteel and Dr. Zaldivar that

Cochran does not suffer from clinical pneumoconiosis. But the

Preamble and regulations make clear that the absence of clinical

pneumoconiosis cannot be used to rule out legal pneumoconiosis.

Here, the ALJ found these experts’ opinions had less probative

value with regard to whether Cochran has legal pneumoconiosis,

the salient diagnosis for awarding benefits here. Thus, the ALJ

provided an alternate basis sufficient to uphold his weighing of

the evidence even if his use of the Preamble were error—although

we conclude that it was not. See Harman, 678 F.3d at 313

(“[E]ven if we were to agree . . . that the ALJ’s invocation of

the preamble in discrediting [an expert’s] opinion was improper

(which we do not), any such error would likely be harmless

because the ALJ provided [] independent reasons . . . for

dismissing [the] opinion.”).

Ultimately, as the ALJ explained, Cochran’s claim reduces

to a case of conflicting medical opinions, i.e., a “battle of

the experts.” It is the role of the ALJ—not the appellate

court—to resolve that battle. E.g., Harman, 678 F.3d at 310.

The ALJ’s lengthy, detailed order reveals a careful

consideration of the experts’ qualifications, their opinions,

13

and the underlying medical science. The order also explains why

the ALJ chose to give Dr. Rasmussen’s opinion more weight.

Nothing before us indicates that the ALJ “substitute[d] his own

medical opinion” for those of Dr. Zaldivar and Dr. Hippensteel,

Reply Br. at 6l, or otherwise committed reversible error. Nor

may we substitute our own judgment for the ALJ’s and reweigh the

evidence. Accordingly, we conclude that the Board properly

affirmed the ALJ’s finding that Cochran suffers from legal

pneumoconiosis.

C.

Finally, Westmoreland contends that the ALJ erroneously

placed the burden of proof on Westmoreland to rule out coal mine

dust as a cause of Cochran’s respiratory impairment. In

particular, Westmoreland cites to a single sentence in the ALJ’s

order stating that “it is not established that coal dust did not

aggravate [Cochran’s] asthma.” J.A. 379. Westmoreland takes

this sentence out of context.

Indeed, reading the decision and order as a whole, it is

clear that this was not a statement of the ALJ’s view as to the

claimant’s burden or the sufficiency of the evidence. Rather,

this was simply part of the ALJ’s explanation for why he chose

not to credit the opinions of Dr. Hippensteel and Dr. Zaldivar

regarding the cause of Cochran’s condition. Elsewhere in the

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order, the ALJ clearly stated “[t]he claimant has the burden of

proving the existence of pneumoconiosis[,]” J.A. 372, and

recognized that the claimant bears the “burden of proof in

establishing the existence of ‘legal’ pneumo-coniosis.” J.A.

379. Accordingly, we hold that ALJ properly placed the burden

of proof on Cochran to establish the existence of legal

pneumoconiosis.

V.

In sum, the ALJ’s decision and order to award benefits was

supported by substantial evidence, rational, and consistent with

applicable law. The Board therefore did not err in affirming

the ALJ’s decision and order, and we accordingly deny

Westmoreland’s petition for review.

PETITION FOR REVIEW DENIED

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TRAXLER, Chief Judge, dissenting:

With respect, I dissent. In my opinion, the ALJ’s decision

to award benefits is not supported by substantial evidence, and

the ALJ erred in shifting the burden to Westmoreland to disprove

pneumoconiosis. I also believe the ALJ erred in discrediting

the opinions of Drs. Zaldivar and Hippensteel based upon the

language in the Preamble.

I.

Highlighting generic findings and general statistics

regarding the physiological effects of coal dust exposure and

cigarette smoking, and based upon a perceived inability to

distinguish between diseases and symptoms caused by them, Dr.

Rasmussen summarily concluded that “Cochran’s coal mine dust

exposure must be considered a significant contributing factor

to” his pulmonary condition. J.A. 39. The conclusion contains

the requisite words, but the underlying basis rests in mere

speculation and possibilities. See J.A. 39 (“While it is

theoretically possible that all of Mr. Cochran’s impairment and

lung damage is the consequence of cigarette smoking, it is also

theoretically possible it is all due to coal mine dust

exposure.”); id. (Cochran’s condition “could be caused by both

asthma and toxic effects of smoking and coal mine dust.”); id.

(“We have no basis for excluding either” as a cause.).

16

Apparently accepting the view that neither theoretical

cause could be ruled out as a contributing one, the ALJ then

compounded the error by imposing upon the employer the burden of

proving that coal dust exposure was not a contributing cause,

finding that:

it [was] not established that coal dust did not

aggravate[] [Cochran’s] asthma. I note, in

particular, Dr. Hippensteel’s admission on cross-

examination that coal dust could aggravate one’s

asthma. Dr. Zaldivar explained that coal mine dust

“can cause physiological changes that are eventually

indistinguishable from emphysema.”

J.A. 379 (emphasis added).

This is not a valid basis for awarding benefits. See

United States Steel Mining Co. v. Dir., OWCP, 187 F.3d 384, 390

(4th Cir. 1999) (“Jarrell”) (rejecting as insufficient a

similarly speculative opinion offered by Dr. Rasmussen - that it

was “‘possible that death could have occurred as a consequence

of [the miner’s] pneumonia superimposed upon ... his

occupational pneumoconiosis’ and therefore ‘[i]t c[ould] be

stated that [the miner’s] occupational pneumoconiosis was a

contributing factor to his death’” (emphasis omitted)); Peabody

Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997) (A “miner’s

pneumoconiosis must be more than merely a speculative cause of

his disability” before an ALJ can award benefits). In the

absence of x-rays, a biopsy, or a valid regulatory presumption,

the burden rests squarely upon the miner to prove by a reasoned

17

medical opinion that his coal mine dust exposure significantly

contributed to or substantially aggravated his chronic

obstructive pulmonary disease. Dr. Rasmussen’s opinion fails to

rise to the requisite standard and the ALJ, in consequence,

improperly shifted the burden to the employer to disprove that

Cochran suffered from legal pneumoconiosis. Accordingly, I

would reverse the award of benefits.

II.

Even if I were to consider Dr. Rasmussen’s opinion as

sufficiently reliable and probative on the issue, I believe the

ALJ additionally erred in discrediting the opinions of Drs.

Hippensteel and Zaldivar based upon the language in the

Preamble.

The Preamble intended to make clear that obstructive lung

diseases (such as chronic obstructive pulmonary disease and

emphysema) can fall within the legal definition of

pneumoconiosis, but only if the claimant can satisfy his burden

of proving that the pulmonary condition was significantly

related to or substantially aggravated by coal dust exposure:

The Department attempts to clarify that not all

obstructive lung disease is pneumoconiosis. It

remains the claimant’s burden of persuasion to

demonstrate that his obstructive lung disease arose

out of his coal mine employment and therefore falls

within the statutory definition of pneumoconiosis.

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65 Fed. Reg. 79920-01, 79923; see also 65 Fed. Reg. 79920-01,

79938 (“The revised definition will eliminate the need for

litigation of this issue on a claim-by-claim basis, and render

invalid as inconsistent with the regulations medical opinions

which categorically exclude obstructive lung disorders from

occupationally-related pathologies. The Department reiterates,

however, that the revised definition does not alter the former

regulations’ requirement that each miner bear the burden of

proving that his obstructive lung disease did in fact arise out

of his coal mine employment, and not from another source.”

(emphasis added) (internal citation omitted)).

Consistent with the conclusion that coal dust exposure can

cause obstructive lung disease, the Preamble also notes medical

studies that “support the theory that dust-induced emphysema and

smoke-induced emphysema occur through similar mechanisms.” id.

at 79943 (emphasis added). However, while the Preamble

recognizes that the mechanisms by which smoke and coal mine dust

cause lung destruction are similar, it does not state that the

mechanisms or “the signs and symptoms [are] identical”, J.A. 39,

as Dr. Rasmussen opined, J.A. 39, or that the causes of an

obstructive pulmonary disease (smoking and/or coal dust exposure

and/or asthma) cannot be determined or ruled out by a qualified

physician. If that were the case, no physician could ever rule

out any degree of coal dust exposure as a significant

19

contributing cause of an obstructive pulmonary disease, and the

Preamble would effectively become an irrebuttable presumption

that coal dust exposure, if it is proven, must be considered to

have significantly caused or substantially aggravated the

pulmonary condition because no one could rule it out. Taking

the language of the Preamble at face value, it is clear to me

that the opinions of Drs. Zaldivar and Hippensteel are not

inconsistent with the Preamble’s findings.

This case is also distinguishable from Harman, wherein we

upheld the decision of an ALJ discrediting a physician’s opinion

as inconsistent with the Preamble. The physician in that case

“based [his] conclusion, in part, on his opinion that legal

pneumoconiosis ‘cannot’ cause obstructive pulmonary disease.”

Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 311 (4th Cir.

2012) (emphasis added). We also upheld the ALJ’s decision to

discredit a second physician’s opinion because he “improperly

believed that pneumoconiosis cannot cause disability in the

absence of a positive x-ray,” another categorical rejection of

the DOL’s conclusions in the Preamble. Id. at 311-12 (emphasis

added) (internal quotation marks omitted). The opinions of Drs.

Zaldivar and Hippensteel, in contrast, are not categorical

rejections of the premise that chronic obstructive pulmonary

disease can be caused or aggravated by coal dust exposure, or

20

that pneumoconiosis cannot exist in the absence of a positive x-

ray finding.

Finally, the ALJ’s conclusion that the opinions of Drs.

Zaldivar and Hippensteel should be discredited because they

focused more on clinical than legal pneumoconiosis also finds no

support in the record. When the evaluations were conducted by

Drs. Zaldivar and Hippensteel, Dr. Rasmussen had diagnosed

clinical pneumoconiosis based upon his positive x-ray reading.

It is not surprising, therefore, that Drs. Zaldivar and

Hippensteel might likewise be focused more on addressing the

diagnosis of clinical pneumoconiosis made by their colleague at

the time. Nevertheless, both physicians addressed the then-

alternative claim of legal pneumoconiosis, exhibited (as the ALJ

acknowledged) a correct understanding of its distinction from

clinical pneumoconiosis, and explained their rationales for

rejecting both forms of pneumoconiosis.

Accordingly, because I believe the ALJ discredited the

opinions of Drs. Zaldivar and Hippensteel on invalid bases, I

would, at a minimum, vacate and remand the case for

reconsideration in light of all of the medical evidence and

pursuant to a proper interpretation of the Preamble.

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