Mabel W. Turner, Widow of Bill Turner v. Director, Office of Workers Compensation Programs, United States Department of Labor

EDWARD S. SMITH, Senior Circuit Judge,

dissenting:

We must review the record to decide whether the administrative law judge’s findings are supported by substantial evi-denee. 1 The record shows the presumption 2 that the deceased was totally disabled by pneumoconiosis was successfully rebutted. Because the administrative law judge’s finding was supported by substantial evidence, the decision should be upheld. Accordingly, I respectfully dissent.

Appellee must rebut the presumption by presenting evidence which negates its validity. The record shows that of eighteen x-ray interpretations, only one interpretation, made in 1979, tested positive for pneu-moconiosis. That positive interpretation is discredited by a more recent interpretation made in 1982 which revealed no pneumoco-niosis. The administrative law judge, sitting as the trier of fact, found that the more recent interpretation was performed by the more qualified x-ray expert and was, therefore, more credible. 3 Consequently, the old, discredited interpretation of the x-ray does not serve as credible evidence of pneumoconiosis.

A pathologist performed a biopsy on the right lower lobe of Turner’s lung and reported lung cancer but not pneumoconiosis. No autopsy was performed after Turner’s death, but the death certificate signed by Dr. Anderson did not mention pneumoconi-osis. Instead, it attributed death to pulmonary failure caused by lung cancer. Therefore, Turner’s treating doctor never diag *781 nosed him as suffering from pneumoconio-sis.

The record shows that there is no credible evidence which indicates that Turner suffered from pneumoconiosis. It is not required that the affirmative evidence disprove the existence of pneumoconiosis. 4 The administrative law judge could have reasonably inferred from a record containing no credible diagnosis of pneumoconiosis and no evidence supporting such a diagnosis, that pneumoconiosis was not present. 5 Thus, the record contains substantial evidence sufficient to support the administrative law judge’s finding that the presumption that Turner was disabled by pneumo-coniosis was rebutted.

Moreover, there is more evidence to support the administrative law judge’s finding. Dr. Wald analyzed the complete medical records of Turner and opined that the cause of death was lung cancer, unrelated to coal mining but closely related to cigarette smoking. Ample evidence found in the record indicating that Turner was a cigarette smoker corroborates Dr. Wald’s analysis. The majority disregards this qualified opinion evidence because it believes the Bethlehem Mines 6 rule is applicable. “A non-examining physician’s opinion on matters not addressed by examining physicians is insufficient as a matter of law to rebut an interim presumption” that the plaintiff was not disabled by pneu-moconiosis. 7

The Bethlehem Mines rule is not apt in this situation for several reasons. First, Dr. Wald’s opinion was that Turner was suffering not from pneumoconiosis, but from lung cancer which could be attributed to cigarette smoking. 8 Other examining physicians also diagnosed Turner as having lung cancer. Because Dr. Wald’s opinion concerned matters which were addressed by other examining physicians, the Bethlehem Mines rule is not invoked. Therefore, Dr. Wald’s opinion can be considered by the administrative law judge in determining whether the presumption was rebutted.

Second, the Bethlehem Mines rule is not an exclusionary rule, but a sufficiency rule. The rule provides that the diagnosis of a nonexamining expert witness “is insufficient as a matter of law to rebut [the] interim presumption....” 9 Therefore, the rule is that the nonexamining physician’s diagnosis is not solely sufficient to rebut the presumption. However, when the diagnosis is corroborated by other evidence which directs the same conclusion, it should be considered. As stated earlier, the evidence indicates that Turner suffered from lung cancer, not pneumoconiosis. Because the diagnosis of Dr. Wald, the nonexam-ining physician, also concludes that Turner suffered from lung cancer, the administrative law judge can consider the opinion as rebuttal evidence.

Lastly, I believe that the Bethlehem Mines rule of sufficiency should not apply in this case because Turner is deceased. 10 When the miner is deceased and no autopsy was performed to test for pneumoconiosis, the defendant can not make an independent evaluation of the miner’s lung condition. Instead, the defendant must rely only on medical records which were authored before the miner died. Although both the plaintiff and defendant are faced with the same evidentiary shortage, the problem hits the defendant harder because the defendant is strapped with the burden of rebutting the presumption. A defendant will be hard pressed to make a successful *782 attempt at rebuttal when the analysis of medical records made by its own experts will not be given sufficient weight by the court. Such an application of Bethlehem Mines will seriously impair a defendant’s ability to successfully defend its position in court. Therefore, an exception to Bethlehem Mines should exist when the miner is deceased. 11

Accordingly, the Bethlehem Mines rule of sufficiency should not apply to exclude consideration of Dr. Wald’s opinion testimony. Because there was substantial evidence to support the administrative law judge’s finding that the presumption that Turner was disabled by pneumoconiosis was rebutted, I respectfully dissent.

. Zbosnik v. Badger Coal Co., 759 F.2d 1187, 1189 (4th Cir.1985).

. 20 C.F.R. § 718.305 .

. The prior x-ray interpretation of pneumoconi-osis is discredited by the later x-ray interpretation of no pneumoconiosis because the disease is progressive and irreversible. Thus, the symptoms of the disease would be even more apparent in a test taken three years after the prior x-ray interpretation.

. Amax Coal Co. v. Burns, 855 F.2d 499, 503 (7th Cir.1988) (comprehensive record devoid of any indication of pneumoconiosis may fairly be deemed affirmative evidence supporting the conclusion that pneumoconiosis was not present).

. Id.

. Bethlehem Mines Corp. v. Massey, 736 F.2d 120 (4th Cir.1984).

. Id. at 125 (emphasis in original).

. In Bethlehem Mines, the rebuttal opinion attributed the plaintiff's totally disabling emphysema to cigarette smoking instead of pneumoco-niosis.

. Id. at 125 (emphasis added).

. Bethlehem Mines concerned a miner who was still alive and thus could be examined by the defendant's experts.

. Amax Coal Co. v. Burns, 855 F.2d 499 (7th Cir.1988); Director, OWCP v. Congleton, 743 F.2d 428 (6th Cir.1984).