UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM AUSTIN,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'

No. 94-1957

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

CLINCHFIELD COAL COMPANY,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(93-976-BLA)

Argued: April 7, 1995

Decided: May 5, 1997

Before WIDENER and LUTTIG, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Petition granted. Vacated and remanded by unpublished opinion.

Judge Widener wrote the opinion, in which Senior Judge Phillips concurred. Judge Luttig concurred in the judgment.

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COUNSEL

ARGUED: Lawrence Lee Moise, III, VINYARD & MOISE, Abingdon, Virginia, for Petitioner. Timothy Ward Gresham, PENN, STUART, ESKRIDGE & JONES, Abingdon, Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

WIDENER, Circuit Judge:

The claimant, William Austin, appeals the denial of black lung

benefits, asserting that relevant medical evidence was not considered

and that the finding of rebuttal of the presumption of total disability

pursuant to 20 C.F.R. § 727.203(b)(3) in favor of Clinchfield Coal

Co., was not supported by substantial evidence. We agree that relevant medical evidence was not considered and that the decision of the

Benefits Review Board affirming the decision of the ALJ was not

supported by substantial evidence. We grant the petition for review

and remand with instructions to award benefits.

I

Austin worked as an underground coal miner for at least 23 years,

performing jobs involving heavy labor, from around 1952 until March

1975. X-ray taken as early as 1972 revealed pneumoconiosis, and by

early 1974 he suffered progressively disabling symptoms of shortness

of breath, coughing, and pain in his chest on exertion. Between

November 1974 and February 1975, he experienced three or four episodes of a feeling of epigastric pressure, nausea, palpitations (fluttering or rapid beating or pounding of the heart felt by the patient),1 and

tachycardia (abnormally rapid heart beat).2 He was admitted to the

local hospital by Dr. Robinson in February 1975 for evaluation. Laboratory tests and electrocardiogram (EKG) showed no evidence of

heart disease and Dr. Robinson diagnosed psychophysiological cardiovascular reaction3 and silicosis.4 Because of continuing pain inthe

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1 J.E. Schmidt, M.D., Attorney's Dictionary of Medicine and Word

Finder P-21.

2 Schmidt, supra note 1, at T-6.

3 Psychophysiologic pertains to a physical disorder in which mental or

emotional disturbances play a causative or aggravating role. Schmidt,

supra note 1, at P-520.

4 Silicosis is a disease of the lungs caused by the prolonged inhalation

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left lower chest area, Austin was referred by Dr. Robinson to the

Medicine Service at University of Virginia Hospital where he was

admitted on May 6, 1975 to the care of attending physician, Dr. Julian

Beckwith. An extensive cardiac and pulmonary evaluation revealed

no evidence of primary cardiac disease. Austin was discharged on

May 16, 1975 with a diagnosis of pneumoconiosis and with instructions not to return to work in the coal mines.

Austin filed a claim with the Industrial Commission for workmen's

compensation benefits under Virginia law on June 25, 1975. His

claim was denied because he had executed a waiver for occupational

pneumoconiosis as a condition of employment, which had been

approved by the Industrial Commission on advice of a physician that

examination of Austin's lungs revealed fibro-nodose infiltration. Following the subsequent determination on January 16, 1986 of his federal claim by the Deputy Commissioner that he was not entitled to

benefits, Austin requested and received a hearing before an administrative law judge which was held on March 9, 1988. However, the

ALJ became ill before rendering a decision, and the case was transferred to another ALJ5 who, with the agreement of the parties, made

factual findings on the prior hearing record.

The ALJ found that the claimant had pneumoconiosis, established

by x-ray, which was due to coal mine employment, and therefore was

entitled to the presumption of disability under 20 C.F.R.

§ 410.490(b)(1)(i) and (b)(2). He concluded, however, that the

employer had successfully rebutted total disability by proving that

Austin was able to do his usual coal mine or comparable work according to 20 C.F.R. § 410.490(c). In reaching this conclusion, the ALJ

credited the opinions of three out of six physicians who opined that

the claimant's respiratory condition was not disabling. The ALJ

rejected the opinion of Dr. Beckwith who stated that Austin was dis-

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of small particles of silicon dioxide. Schmidt, supra note 1, at S-155. Silicosis is sufficient to establish pneumoconiosis. Zimmerman v. Director,

871 F.2d 564, 566 (6th Cir. 1989); 20 C.F.R. § 718.201.

5 Administrative Law Judge Everette E. Thomas.

 3
abled from doing his regular work because he found the opinion was

not documented and therefore inadequately reasoned. 6

On review of that decision, the Benefits Review Board affirmed

that the x-ray evidence sufficiently established pneumoconiosis under

20 C.F.R. § 410.490(b)(1)(i). The Board determined, however, that

this invoked the presumption under 20 C.F.R. § 727.203(a)(1), and

remanded the claim for consideration under 20 C.F.R.§ 727. The

Board instructed the ALJ to compare the medical reports assessing the

claimant's physical abilities with the exertional requirements of

claimant's job duties. The Board pointed out that the issue on rebuttal

was not whether the medical tests had yielded qualifying values, but

whether the record as a whole established that the claimant was

totally disabled. The Board also instructed the ALJ to address the

opinion of Dr. Claustro, who had opined that the claimant's cardiopulmonary system and function were within normal limits, as this

might be relevant to an inquiry under 20 C.F.R.§ 727.203(b)(3). The

Board noted that a finding of rebuttal under § 727.203(b)(4) was precluded as a matter of law, based on Mullins Coal Co. v. Director,

OWCP, 484 U.S. 135 (1987).

On remand, the ALJ considered the heavy labor requirements of

the claimant's job as instructed and determined that the employer had

failed to rebut, under C.F.R. § 727.203(b)(2), the interim presumption

of total disability. However, the ALJ found that the employer had

rebutted the presumption that the claimant's total disability arose out

of coal mine employment pursuant to § 727.203(b)(3) based on the

opinion of Dr. Sargent that the claimant's respiratory disability was

due to cardiovascular disease and asthma or chronic bronchitis. The

ALJ determined that the Board had affirmed his decision not to consider the opinion of Dr. Beckwith. He did not, however, consider the

opinion of Dr. Claustro as instructed by the Board.

The decision of the ALJ was affirmed by the Board on June 21,

1994. The Board found that the ALJ properly refrained from considering Dr. Robinson's opinion under § 727.203(b)(3) because,

although Dr. Robinson had diagnosed the claimant as having silicosis,

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6 Dr. Beckwith's opinion will be discussed in more detail later in the

opinion.

 4
he offered no opinion regarding the cause of the claimant's disability.

The Board likewise found that the ALJ acted correctly in according

no weight to the opinion of Dr. Beckwith "by implicitly incorporating

the determination in his first Decision and Order that Dr. Beckwith's

opinion is not entitled to any weight inasmuch as the physician failed

to provide an explanation for his diagnosis that claimant was disabled

from doing his usual work because of silicosis." The Board also held

that "Dr. Beckwith's opinion is not entitled to greater weight on the

basis that the physician was chosen by a party other than counsel,

since the identity of a party who hires a medical expert does not, by

itself, demonstrate partiality or partisanship on the part of the physician." The Board went on to find that the ALJ permissibly credited

the opinion of Dr. Sargent that claimant's disability was "due to cardiac conditions and asthma which were not related to his coal mine

employment" because it was "better supported by the underlying

objective evidence of record." What that evidence was the Board did

not relate.

II

Austin seeks review of the last decision of the Board. He asserts

that the Board erred in affirming the ALJ's decision because the ALJ

erred as a matter of law in failing to consider all relevant medical evidence and that the finding of rebuttal under § 727.203(b)(3) is not

supported by substantial evidence, is not rational, and is not in accordance with the law. The standard of review for errors of law is de

novo. Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th Cir. 1993).

However, findings of fact must be affirmed if supported by substantial evidence. Thorn, 3 F.3d at 718.

To set the case before us properly, it has now been established that

Austin has pneumoconiosis due to coal mine employment, that he is

totally disabled from performing his usual or comparable work, and

that he is entitled to the presumption under 20 C.F.R. § 727.203(a)(1)

that his total disability is caused by coal miners' pneumoconiosis.

Those questions are beyond review. The only questions before us are

whether correct legal standards were used in the decision to deny benefits and whether substantial evidence supports the finding that the

defendant ruled out any causal relationship between Austin's pneu-

 5
moconiosis and his total disability. Bethlehem Mines Corp. v. Massey,

736 F.2d 120, 123 (4th Cir. 1984).7

III

A part of the Board's error is so patent as to require only brief comment. The Board held that the opinions of Austin's treating physicians

were not entitled to any greater weight than any other opinion. That,

of course, is error. We had held in Thorn, 3 F.3d at 714, n.3, and

before, that the opinion of a claimant's treating physician should be

given great weight, although not dispositive. Drs. Robinson and Beckwith were treating physicians, and they, Dr. Beckwith, especially,

who was in charge of Austin's ten-day hospital stay, were in the best

position of any of the physicians connected with this case to give their

opinions. Far from discounting the opinions of these physicians as

they did, both the ALJ and the Board should have accorded them

great weight and their refusal so to do might well have called for a

remand, at least, had there been no other error. But there was.

IV

We next address whether the Board erred in affirming the ALJ's

decision not to consider the opinion of Dr. Beckwith. The record

shows that Austin submitted copies of medical records of his hospitalization for treatment from May 5, 1975 through May 16, 1975 at the

University of Virginia Hospital.8 The Discharge Summary gives

patient history and the results of physical examinations and diagnostic

tests that were performed on Austin during his 10-day hospitalization,

including blood work, EKG, chest x-ray, lung scan, pulmonary function tests, and consultations by pulmonary specialists. The records

contain copies of the actual test results as well as daily progress notes

written by the treating physicians. While several physicians were

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7 Neither the ALJ nor the Board considered whether or not Austin's

acknowledged black lung disease contributed to his disability. See generally, e.g., Massey and Adkins v. Dept. of Labor, etc., 824 F.2d 287 (4th

Cir. 1987). Because we require the award of benefits, we do not reach

this question.

8 Claimant's Exhibit No. 1. The ALJ recited that he had "sighted" each

exhibit.

 6
involved in Austin's care at this teaching hospital, Dr. Beckwith is

listed as the attending physician, and it is obvious from the records

that he is the physician responsible for and directing Austin's diagnosis and treatment.9

The progress notes from this hospitalization contain daily handwritten evaluations and impressions by Dr. Beckwith and the other

treating physicians. In his report to Dr. Robinson, the referring physician, dated May 28, 1975, Dr. Beckwith writes that Austin was found

to have silicosis with decrease in pulmonary function, and that he did

not think that Austin's pain or dyspnea were due to heart disease. In

his opinion, Austin was "disabled from doing his usual work because

of the silicosis."

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9 The Discharge Summary states in part:

The patient was evaluated by Dr. Beckwith which revealed heart

of normal size and contour and no significant cardiovascular

abnormalities. [Austin] underwent a Treadmill test, achieving 9

Mets and a heart rate of 135 without occurrence of chest pain or

ST changes on EKG. The test had to be stopped secondary to

shortness of breath. The impression was that this chest pain was

not of a cardiovascular origin. The patient also underwent pulmonary function studies which revealed significant decreases in

vital capacity (39%, 63 predicted). FEV 1 (34 and 36% predicted) and MMEFR (25% and 34% of predicted). PO was 60

and 64, pCO2 31 and 35, pH 7.38, 7.4. CO2 diffusion was markedly decreased with values 23/34 on two occasions. For these

values he was seen in consultation by the Pulmonary group who

reviewed his chest films and believed them to show moderately

severe fibrosis and small nodular disease consistent with pulmonary fibrosis. Although silicosis was the most likely suspect the

patient was felt to be quite young and not to have had a large

exposure. It was suspected that his pulmonary function studies

were misleading secondary to the patient's noncompliance. At

the recommendation of the Pulmonary Team the patient had an

anti-tryptic activity scan and lung volumes performed pending at

time of discharge. He also underwent a lung scan which was

abnormal, revealing uptake in the apices bilaterally.

University of Virginia Hospital Discharge Summary for William Austin,

admitted 5-6-75, discharged 5-16-75.

 7
This is the opinion that the ALJ found to be undocumented, and

thus not well-reasoned, and of no weight, which finding was affirmed

by the Board.

Far from being undocumented and not well reasoned, Dr. Beckwith's opinion is documented as well as any physician's opinion that

this panel has examined in a black lung case. Even if there have been

filed better documented opinions, none has come to our attention.

Austin, who had not before filed a black lung claim, was sent to the

teaching hospital at the university by Dr. Robinson,"with particular

reference to the possibility of heart disease or possibly some anomaly

of the arteries leading to the left upper extremity," where he was

admitted for treatment and stayed about ten days. His attending physician was Dr. Beckwith. He was treated, or there participated in his

treatment, at that hospital, or he was examined by, at least 11 other

physicians in the various departments of the hospital, including, at

least, Drs. Hunt, Minor, Entelis, Fritz, Sheffer, Dec, Teates, Nordensell, Craddock, Feats, and Wood. The documentation filed with Dr.

Beckwith's letter discloses that Austin had been engaged in hard labor

in the mines. He had been a cutter, a brick layer, and a masonry assistant, which involved carrying heavy loads of mortar and stone greater

than 100 lbs. several yards and flinging that load onto platforms and

work areas. The documents accompanying Dr. Beckwith's opinion

are everything which might be expected from a modern medical center and consist of 69 pages of reports of every test and consultation

with respect to Austin's ailments.

We are thus of opinion that Dr. Beckwith's opinion was not only

well documented, it was well reasoned. Indeed, it is by far the best

documented and best reasoned opinion in this record.

We are further of opinion that the conclusions of the ALJ and the

Board, that the opinion of Dr. Beckwith was entitled to no weight, are

not only not supported by substantial evidence, they are contrary to

law. Both the ALJ and the Board simply declined to consider the most

probative evidence in the case.

V

If that were not all, the record shows further substantial error on the

part of the ALJ and the Board. As stated, we review only the decision

of the Board, that

 8
Claimant's total disability was due to cardiac conditions and

asthma which were not related to his coal mine employment.

Decision of the Board of June 21, 1994, p.3. The Board specified in

its decision that this finding was based on the fact that the ALJ had

"permissibly credited the opinion of Dr. Sargent." Board decision of

June 21, 1994, p.3. Dr. Sargent was one of the physicians who examined Austin at the instance of the employer. There are two decisions

by the ALJ and two by the Board, and we have examined all of them.

Beside Dr. Beckwith, of the hospital at the university, the four

administrative decisions rely only on Drs. Buddington (Director),

Dahan (employer), Robinette (Austin), Modi (Austin), Sargent

(employer), Robinson (Austin), Claustro (Director), and Garzon

(employer), with the parentheses following the name to indicate who

introduced that physician's opinion into evidence. Drs. Dahan, Robinette, Modi, Sargent and Garzon were Board certified internists. Dr.

Beckwith, obviously Board certified, was Chief of the Cardiology

Section at the University of Virginia School of Medicine. Whether or

not the other physicians were Board certified is not shown.

We have examined the testimony and statements of each of these

physicians whose opinions together make up all the medical evidence

on which the ALJ and the Board have relied to decide this case. None

of them except Dr. Sargent found "cardiac conditions" consisting of

"cardiovascular disease." None of them except Dr. Sargent found

asthma, either that Austin had asthma or that it was the cause of Austin's total disability. Neither the ALJ nor the Board accounted for this

wide discrepancy in the evidence. Indeed, neither mentioned the discrepancy.

"[P]neumoconiosis means a chronic dust disease of the lung and its

sequelae including respiratory and pulmonary impairments. . . ." 20

C.F.R. § 718.201. All of the physicians whose testimony and reports

make up this medical record, except Drs. Beckwith and Robinson and

the other physicians at the university (who were treating physicians),

examined Austin especially on account of his claim of pneumoconiosis. The common name of the disease is even black lung. So those

physicians were examining Austin's lungs and respiratory system. If

asthma was present, it strains credulity to believe that only Dr. Sar-

 9
gent correctly detected asthma. Dr. Beckwith and the other physicians

at the university commenced their examination of Austin because of

the reference of his local treating physician "to the possibility of heart

disease or possibly some anomaly of the arteries." Even on that track,

those physicians were of the opinion expressed by Dr. Beckwith, that

Austin had silicosis and not heart disease. Again, it strains credulity

to find that no other one of those physicians mentioned, except Dr.

Sargent, found that Austin had "cardiac conditions," as found by the

Board, consisting of "cardiovascular disease" in the words of Dr. Sargent. And the physicians at the university also did not find asthma.

Not a scrap of paper in this record, except the opinion of Dr. Sargent, is inconsistent with the opinion of Dr. Beckwith, that Austin had

silicosis and that Austin was disabled from doing his usual work

because of the silicosis. The evidence is simply overwhelming that

the opinion of Dr. Beckwith is correct, and we so find. Not another

scrap of paper in this record is consistent with the opinion of Dr. Sargent that Austin had asthma; not one other physician so found.

VI

In ordinary circumstances, we are not supposed to weigh evidence

in such a case, and we rarely do. The claim of Austin, however, has

been pending for more than 20 years. He has been examined by probably two dozen physicians. No one has suggested any medical test relevant to his claim which has not been performed. The evidence is

simply overwhelming that he has pneumoconiosis and that he is

unable to perform his usual coal mine employment on that account.

We are of opinion that substantial evidence does not support the

finding of rebuttal under 20 C.F.R. § 727.203(b)(3).

We are of opinion that the findings of both the ALJ and the Board,

that the report of Dr. Beckwith was not entitled to any weight, is not

only not supported by substantial evidence, it is contrary to law. See

5 U.S.C. § 706; 33 U.S.C. § 921(b)(3).

We are of opinion that the finding of the Board, that Austin's total

disability was due to cardiac conditions and asthma, is not supported

by substantial evidence.

 10
It is time for this case to end. We vacate the order of the Board and

remand the case to the Board, which will see to the entry of benefits

for Austin. See Petry v. Califano, 577 F.2d 860, 867 (4th Cir. 1978).

PETITION FOR REVIEW GRANTED; VACATED

AND REMANDED WITH INSTRUCTIONS

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