Dehue Coal Company v. Laymond Ballard Director, Office of Workers' Compensation Programs, United States Department of Labor

BUTZNER, Senior Circuit Judge,

dissenting:

At the time of the administrative hearing the evidence firmly established that Lay- *1198 mond Ballard was totally disabled because of a respiratory or pulmonary impairment, that he had pneumoconiosis arising from his coal mining employment, and that his exposure to coal dust did not cause his cancer. The only remaining issue is whether his pneumoconio-sis contributed to his disability.

To establish that Ballard’s pneumoconiosis did not contribute to his disability, the ALJ relied heavily on the fact that before Ballard had his left lung removed he was able to work in the mines. Several of the doctors based their opinions about causation on the same reasoning.

Both the Board, which reversed the ALJ, and the Director, who supports Ballard, point out that the ALJ’s reasoning is contrary to law. The relevant inquiry for determining whether a coal miner is disabled is his condition on the date of his hearing before the ALJ. Cooley v. Island Creek Coal Co., 845 F.2d 622, 624 (6th Cir.1988); Coffey v. Director, OWCP, 5 BLR 1-404, 1-407 (BRB 1982). The statute and the regulations are silent regarding the relevant time for assessing a miner’s disability, and we owe no deference to the Board’s views on this subject. See Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268 , 278 n.18, 101 S.Ct. 509 , 515 n.18, 66 L.Ed.2d 446 (1980). Nevertheless, we are not left without guidance. The Director’s reasonable interpretation of the statute and regulations is entitled to substantial judicial deference. See Pauley v. Beth-Energy Mines, 501 U.S. 680, 696-97 , 111 S.Ct. 2524, 2533-34 , 115 L.Ed.2d 604 (1991); See v. Washington Met. Area Transit Authority, 36 F.3d 375, 383 (4th Cir.1994).

Apparently convinced by Cooley, 845 F.2d at 624 , the Director has taken the position that the relevant time for assessment of disability is the date of the hearing. I believe we should accept this view. The fact that Ballard could work in the mines before his operation, but not afterwards, does not preclude benefits. Whether his pneumoconiosis contributed to his disability must be assessed at the time of the hearing.

The ALJ relied in part on the opinions of Drs. Zaldivar, Chang, and Sampath. The doctors offered little, if any, information on the sole issue in this case. They all concluded that since the claimant’s cancer was caused by smoking, it did not arise from coal mine employment. But that is not an issue. Ballard does not claim that his cancer arose from his coal mining employment.

Other sources of the ALJ’s denial of benefits are the opinions of Drs. Fino and Crisalli. Neither of these doctors, however, found that Ballard had pneumoconiosis. Their failure to diagnose pneumoconiosis is contrary to both the substantial evidence that he has pneumo-coniosis and the explicit finding of the ALJ, which was confirmed by the Board. Their opinions, therefore, have little or no value on the critical issue in this case — whether pneu-moconiosis contributed to Ballard’s disability. In words quoted from the Director’s brief supporting Ballard, “it seems an inescapable conclusion that such an opinion can have no probative value, since a doctor who begins from the erroneous assumption that a miner does not have pneumoconiosis must necessarily conclude that pneumoconiosis was not a cause of disability.”

Caution innate to the judiciary counsels us never to say “no probative value,” but it is unlikely that such opinions can rise to the dignity of substantial evidence. In this circuit we have phrased this sound evidentiary rule by holding that “such opinions are not worthy of much, if any, weight.” Grigg v. Director, OWCP, 28 F.3d 416 , 419-20 (4th Cir.1994); accord Toler v. E. Associated Coal Co., 43 F.3d 109, 115-16 (4th Cir.1995). Though expressed in different ways in the application of different black lung regulations, this principle apparently has universal support in those circuits that have considered it. See, e.g., Skukan v. Consolidation Coal Co., 993 F.2d 1228, 1233 (6th Cir.1993), vacated on other grounds, — U.S. -, 114 S.Ct. 2732 , 129 L.Ed.2d 854 (1994); Peabody Coal Co. v. Shonk, 906 F.2d 264, 271 (7th Cir.1990); Garcia v. Director, OWCP, 869 F.2d 1413, 1417 (10th Cir.1989). In fairness to the ALJ, it should be noted that he did not have Grigg to guide him on the issue of causation, because we decided Grigg after the ALJ wrote his opinion.

I cannot subscribe to the notion that Hobbs v. Clinchfield Coal Co., 45 F.3d 819 (4th *1199 Cir.1995), modifies or in any other way encroaches on the logical, common sense, evi-dentiary rule of Grigg. Hobbs II can best be understood by taking into account that the ALJ and the Board decided it before our opinion in Grigg.

In Hobbs II, two of the doctors stated that Hobbs did not have “coal workers’ pneumo-coniosis,” although he did have bronchitis and a chronic productive cough resulting from exposure to coal dust. They concluded that his respiratory impairment did not contribute to his total disability which was caused by obesity and arthritis. 45 F.3d at 820 . The ALJ found that Hobbs did have pneumoconiosis, but he did not find that he had a total respiratory disability. Nevertheless, the ALJ credited the opinions of the doctors that pneumoconiosis did not contribute to Hobbs’ disability and denied benefits. The Board affirmed. We decided Grigg pending Hobbs’ petition for review of the Board’s adverse decision.

In his petition for review, Hobbs, relying on Grigg, asserted that the Board erred in crediting the doctors’ opinions on causation. The court rejected Hobbs’ argument because the doctors’ attribution of Hobbs’ respiratory impairment to coal dust satisfied the legal definition of pneumoconiosis. Citing Grigg, the court held that the doctors were qualified to express an opinion on causation. However, far from detracting from Grigg’s authority, the Hobbs II court recognized the validity of the evidentiary principle that undergirds Grigg.

There is another aspect of Hobbs II that distinguishes it from the Board’s decision that we are now reviewing. In Hobbs II, neither the ALJ nor the Board found that Hobbs had a totally disabling respiratory impairment. The Board wrote: “[The] Administrative Law Judge ... determined that [the evidence] was insufficient to establish that claimant suffered from a totally disabling respiratory impairment.” Hobbs v. Clinchfield Coal Co., BRB No. 92-1161 BLA at 2 (Sept. 1, 1993) (unpublished). It was, therefore, impossible to say that his pneumo-coniosis contributed to his total disability. See Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 , 243 — 45 (4th Cir.1994). This is in sharp contrast to the situation we are presently reviewing, for it is uncontested that Ballard has a totally disabling respiratory impairment.

The Board stated that the doctors whom the ALJ credited failed to diagnose Ballard’s pneumoconiosis although the ALJ found its existence established. These opinions, therefore, were of little probative value on the issue of causation. See Grigg, 28 F.3d at 419-20.

The Board also pointed out that Dr. Rana-vaya diagnosed pneumoconiosis in Ballard’s remaining lung. The doctor found that this lung is less than normal, reflecting a mild pulmonary impairment of approximately 20 percent disability, which he concluded was due to exposure to coal dust. A pathologist, Dr. Ahmed, concluded that Ballard’s significant pulmonary impairment was aggravated by coal dust exposure and that pneumoconio-sis would prevent Ballard from performing his usual work in the mines. The Board determined that Ballard’s total respiratory disability is due in part to pneumoconiosis. In this respect, the Board relied on Robinson v. Pickands Mather & Co., 914 F.2d 35 , 38 (4th Cir.1990), in which we held: “To be entitled to benefits, a claimant must prove by a preponderance of the evidence that his pneumoconiosis was at least a contributing cause of his totally disabling respiratory impairment.”

Hobbs II has added a wrinkle to our consideration of causation. It held that a doctor who diagnosed legal pneumoconiosis is qualified to give an opinion on whether the pneu-moconiosis contributed to total disability even though the doctor detected no medical pneumoconiosis. Because Drs. Hansbarger and Caffrey diagnosed conditions that arguably fall within the definition of legal pneu-moconiosis, they may be qualified to give an opinion on whether Ballard’s legal pneumoco-niosis contributed to his total respiratory disability.

Dr. Crisalli, one of the company’s witnesses, insisted that Ballard’s mild impairment to his remaining lung was caused by smoking-induced bronchitis, not pneumoconi-osis. Nevertheless, he acknowledged that *1200 the removal of Ballard’s right lung was not the sole cause of his total respiratory or pulmonary disability. He explained that there were two causes of Ballard’s impairment, chronic bronchitis and the effect of the lung surgery. He added that Ballard “cannot undertake the heavy manual labor in the mines because of his pulmonary function impairment which is related to his chronic bronchitis and his pneumonectomy for lung cancer.” Even the company’s own witness recognized that the impairment of Ballard’s left lung — which he called chronic bronchitis and others called pneumoconiosis — contributed to Ballard’s total pulmonary disability.

Unfortunately, the ALJ did not have the benefit of Grigg and Hobbs when he evaluated the evidence to determine the sole question in this case, causation. In my opinion these cases are essential to understanding the complexities that have encrusted this issue.

Dissenting, I would not reverse the Board and deny benefits. Instead, I would vacate the Board’s opinion and remand the claim to the ALJ with instructions to re-evaluate the evidence at the time of the hearing in light of Grigg and Hobbs II.