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Unpublished United States Court of Appeals For The Fourth Circuit
Unpublished United States Court of Appeals For The Fourth Circuit
Respondent Director. ON BRIEF: J. Davitt McAteer, Acting Solicitor of Labor, Donald S. Shire, Associate Solicitor, Christian P.
Barber, Counsel for Appellate Litigation, Helen H. Cox, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dominion Coal appeals from the Black Lung Benefits Review
Board's order upholding an Administrative Law Judge's award of
benefits to Ezekial Vance. The ALJ's finding of pneumoconiosis
under 20 C.F.R. 718.202(a)(4) (1996) and the ALJ's decision that
Vance's disability was "due to" coal worker's pneumoconiosis were
legally correct and supported by substantial evidence. Accordingly,
we affirm.
I.
Ezekial H. Vance worked for thirty-three years as a coal miner, and
smoked a half-a-pack of cigarettes a day for over thirty years.
Vance
quit smoking in 1990. Vance worked for Dominion Coal Corporation
("Dominion") for eighteen years, and retired in October 1989. On
May 6, 1993 he filed an application for federal black lung benefits
under 30 U.S.C. 901-945 (1994). The Department of Labor determined that Vance was eligible for benefits, and that Dominion was
the responsible operator. Dominion filed a controversion to this
finding, and Vance's case was forwarded to an ALJ.
On July 8, 1994 Vance and Dominion appeared before the ALJ,
who considered the various and conflicting medical testimony and
held that Vance was entitled to benefits. Dominion appealed this
rul2
ing to the Benefits Review Board. The Board affirmed the decision
of the ALJ and Dominion appealed to this court.
II.
The standard of our review of the Board's decision is set forth in
the Longshoremen's and Harbor Worker's Compensation Act, 33
U.S.C. 921 (1994), and incorporated into the Black Lung Act by 30
U.S.C. 932(a) (1994). See Grizzle v. Pickands Mather & Co. , 994
F.2d 1093, 1096 (4th Cir. 1993). The Board reviews the ALJ's findings of fact to determine if they are "supported by substantial
evidence in the record considered as a whole." Doss v. Director,
Office
of Workers Compensation Programs , 53 F.3d 654, 658 (4th Cir.
1995). We review the Board for "errors of law," and to determine
whether the Board correctly followed its "statutory standard of
review
of factual determinations," i.e. whether the Board was correct that
the
ALJ's findings of fact were supported by "substantial evidence."
Doss, 53 F.3d at 658-59.
Substantial evidence is "more than a mere scintilla" and evidence
that "a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Under the
substantial evidence requirement "[t]he ALJ has sole power to make
credibility determinations and resolve inconsistencies in the evidence." Grizzle, 994 F.2d at 1096.
With these standards in mind we turn to the Board's affirmance of
the ALJ in this case. Dominion appeals two aspects of the Board's
decision. The first is the Board's affirmance of the ALJ's finding
of
"legal" pneumoconiosis under 20 C.F.R. 718.202(a)(4) (1996). The
second is the Board's affirmance of the ALJ's decision that Vance's
total disability was "due to" his pneumoconiosis under 20 C.F.R.
718.204 (1996). We discuss these issues in order.
A.
Under 20 C.F.R. 718.202(a) (1996) there are four ways to establish the existence of pneumoconiosis. The ALJ found pneumoconiosis
under both 718.202(a)(1) and 718.202(a)(4). Section
3
Board. 318
U.S. at 87-88.
4
A: Yes.
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Dr. Forehand reached the conclusion that Vance suffered from coal
worker's pneumoconiosis based upon a blood-gas study, an electrocardiogram, a pulmonary function study, a physical performance
test,
a physical examination, and medical and work histories. These are
the
precise tests specifically listed as the "objective medical
evidence"
required to establish a "reasoned medical" diagnosis of
pneumoconiosis under 718.202(a)(4). Furthermore, Dr. Forehand specifically
stated that his diagnosis would be the same regardless of the x-ray
evidence. As such, Dr. Forehand's diagnosis is certainly sufficient
under 718.202(a)(4).
Dr. Donald Rasmussen examined Vance on April 6, 1994. Dr. Rasmussen performed a medical history and a physical evaluation, as
well as a chest x-ray, an electrocardiogram, a spirometry exam,
diffusing capacity studies, and blood-gas studies at rest and during
exercise. Dr. Rasmussen found that Vance suffered from pneumoconiosis
as a result of his thirty years of coal mine employment, and that
Vance was totally disabled. In his deposition Dr. Rasmussen listed
a
number of factors that contributed to his diagnosis:
[Vance's] history indicated significant respiratory symptoms. He had abnormal physical findings consistent with
chronic lung disease. He had an abnormal x-ray consistent
with simple pneumoconiosis. He showed moderate partially
reversible obstructive ventilatory impairment, a minimal
decrease in his diffusing capacity, and poor exercise tolerance, limited principally by ventilatory impairment, also
showing some minimal impairment in gas exchange.
[In the physical
reduction in the
of breath sounds
expiratory phase
that
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III.
The Board did not err in affirming the ALJ's findings, and so the
Board's order is hereby
AFFIRMED.
NIEMEYER, Circuit Judge, dissenting:
Because I believe that the ALJ's analysis of the medical evidence
in this case fell far short of meeting established standards for
evaluating such evidence, I would remand this case to the Board with
instructions to remand it to the ALJ for further analysis.
The questions of whether Vance had pneumoconiosis and whether
pneumoconiosis was the cause of his disability are extremely close.
Even Vance's own doctors described symptoms that are more consistent with cigarette smoking than with pneumoconiosis. Accordingly,
whether the ALJ properly analyzed the medical evidence is critical
to
the proper resolution of Vance's claim.
It would appear first that the ALJ simply failed to follow the
requirements of applicable regulations in evaluating the x-ray evidence. He placed most reliance on readings by physicians whose
qualifications are not in the record, acting directly contrary to
20
C.F.R. 718.202(a)(1) & 718.102. It was for good reason that the
Board did not rely on the ALJ's finding with respect to the x-ray
evidence in affirming the ALJ. It is also for this reason that we must
be
particularly vigilant to disqualify any medical report to the
extent that
it relies on a positive x-ray finding.
The majority, reviewing the basis of the Benefits Review Board
decision but perhaps also recognizing the flaws in the ALJ's
evaluation of the x-ray evidence, addresses only whether Vance
established
the existence of pneumoconiosis by medical evidence under 20 C.F.R.
718.202(a)(4). But the ALJ's analysis under (a)(4) is just as
flawed.
The ALJ characterized the physicians on whom he relied as having
found
that
the
claimant
"suffered
from
coal
workers'
pneumoconiosis,
or at least, could not rule it out." He relied on the reports of
Drs. Forehand, Sargent, and Rasmussen.
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Finally, I should not omit noting that the Director has urged us to
remand this case for similar reasons.
For the foregoing reasons, I respectfully dissent.
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