UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CONSOLIDATION COAL COMPANY,

Petitioner,

v.

DONALD E. FILER; DIRECTOR,

No. 95-1270

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(92-2525-BLA)

Argued: December 8, 1995

Decided: March 26, 1996

Before WILKINS and NIEMEYER, Circuit Judges, and PAYNE,

United States District Judge for the Eastern District of Virginia,

sitting by designation.

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Reversed, vacated, and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY, Morgantown, West Virginia, for Petitioner. J. Scott Leckie, YABLONSKI, COSTELLO, LECKIE & CHABAN, Washington, Pennsylvania, for Respondent.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Consolidation Coal Company ("Consolidation") appeals the decision of the United States Department of Labor Benefits Review Board

(the "Board") awarding lifetime disability benefits to Donald E. Filer

under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. For the

reasons which follow, we reverse and vacate the Board's decision and

remand the matter for further proceedings.

BACKGROUND

Filer was employed as an underground coal miner for almost 43

years. A few days after retiring in August 1990, Filer submitted a

claim for lifetime benefits claimed by virtue of a total, permanent disability allegedly caused by pneumoconiosis arising out of employment in a coal mine. It was then, and remains now, undisputed that:

(1) Filer was employed as an underground coal miner for almost 43

years; (2) Filer is totally disabled largely, if not completely, as the

result of chronic obstructive pulmonary disease; and (3) Filer's chest

x-rays do not indicate the presence of coal miners' pneumoconiosis.

Upon initial review, the district director for the United States Department of Labor determined that there was sufficient evidence to support Filer's entitlement to the disability benefits he claimed.

Consolidation requested that the matter be referred to the Office of

Administrative Law Judges for a hearing de novo which was held on

March 19, 1992. At the hearing, the Administrative Law Judge heard

testimony and received exhibits and, on August 17, 1992, issued a

decision and an order awarding benefits. Consolidation sought review

of the ALJ's decision by the Board which held that it was based upon

substantial evidence and rejected Consolidation's appeal. Consolidation petitioned for reconsideration, but the Board denied the petition.

This appeal followed.

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Under § 902(b) of the Act and the applicable regulations, 20 C.F.R.

§ 718.201, pneumoconiosis is defined as a"chronic dust disease of

the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." This includes any

chronic pulmonary disease resulting in impairment significantly

related to, or substantially aggravated by, dust exposure arising out of

employment in a coal mine. Consequently, the legal definition of

pneumoconiosis is significantly broader than the medical definition of

the term. Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 821 (4th Cir.

1995); see Nance v. Benefits Review Bd., 861 F.2d 68, 71 (4th Cir.

1988).

The controlling regulations permit a finding of pneumoconiosis on

the basis of: (1) chest x-rays meeting regulatory criteria; (2) biopsies

or autopsies conforming to regulatory requirements; or (3) certain

presumptions created by regulation. None of these three modes of

proof are implicated in this appeal. Instead, we are concerned here

with the fourth permissible method for demonstrating pneumoconiosis: the medical opinion method, pursuant to which:

[a] determination of the existence of pneumoconiosis may

also be made if a physician, exercising sound medical judgment, notwithstanding a negative x-ray, finds that the miner

suffers or suffered from pneumoconiosis as defined in section 718.201. Any such finding shall be based upon objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work

histories. Such findings shall be supported by a reasoned

medical opinion.

20 C.F.R. § 718.202(a)(4) (emphasis added). The record reflects the

opinions of seven physicians addressing Filer's condition.

First, on May 7, 1986, after Filer had worked 39 years "inside the

mines," Dr. A.K. Pfister, a specialist in internal medicine and infectious disease, and Dr. J.T. Smith, whose specialty does not appear in

the record, jointly opined that there was "[n]o evidence of occupational pneumoconiosis." (J.A. 11.) In their opinion, based on physical

examination, x-rays and exercise testing, Filer's"[p]ulmonary func-

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tion changes [were] related to bronchospastic airway disease." (J.A.

11.)

Second, on August 23, 1990, Dr. Jayesh Gosai, whose specialty is

not reflected in the record, expressed the view based on a physical

examination, medical history and physical testing, that there was

"COPD, possible black lung disease and bronchial asthma." (J.A. 18.)

Third, on September 13, 1990, at the request of the United States

Department of Labor, Dr. Yong Dae Cho examined Filer and

recorded his medical history. Dr. Cho, who is Board certified in family practice, expressed the view that Filer suffered from severe COPD

due to "coal dust and cigarette smoking," but was unable to differentiate between the effects of coal mine dust and cigarette smoking. (J.A.

56 and 58.) Notwithstanding his expressed view that simple pneumoconiosis can never be disabling, Dr. Cho also gave the opinion that

exposure to both coal mine dust and cigarette smoke contributed to

Filer's disability. (J.A. 51 and 56).

Fourth, on October 5, 1990, Dr. Surinder K. Aneja, a specialist in

pulmonary medicine, having considered physical examination and

laboratory findings, expressed the view that Filer suffered from "severe COPD" and "mild congestive heart failure secondary to chronic

cor-pulmonale." (J.A. 17.)

Fifth, on May 6, 1991, following physical examination and laboratory evaluations, Dr. Joseph J. Renn, III, a pulmonary specialist,

expressed the opinion that:

Mr. Donald Filer has intristic asthma, exogenous obesity,

Cushingoid changes and, by past medical history, congestive heart failure. He does not have pneumoconiosis. He has

a very severe obstructive venialtory defect of sufficient

degree to prevent him from being able to perform his last

known coal mining job of dumper and hoister or any similar

work effort. It is with a reasonable degree of medical

certainty Mr. Donald Filer's intristic asthma, exogenous

obesity, Cushing-oid changes and congestive heart failure

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were neither caused, nor contributed to, by his exposure to

coal mine dust.

(J.A. 15.) (emphasis added).

Sixth, Dr. Warfield Garson, who is Board certified in preventive

medicine, examined Filer on May 30, 1991, and, on the basis of physical examination, past medical history and pulmonary function tests,

past and present, expressed the following view:

I find this man, in view of his pulmonary signs , symptoms,

to be totally and permanently disabled from his previous job

as an underground coal miner. However, these findings are

primarily due to his emphysema, and I do not find any

evidence of coal workers' pneumoconiosis at this time.

(J.A. 38.) (emphasis added). On December 3, 1991, Dr. Garson wrote

to Filer's counsel in response to a letter which is not in the record. At

that time, Dr. Garson expressed a somewhat different view:

Mr. Filer's pulmonary disability of chronic obstructive lung

disease is primarily due to his emphysema which, in part,

was caused by his long term intermittent smoking of cigarettes and to his exposure to underground coal mine dust

which aggravated his pulmonary problem. His underground

coal mine dust exposure substantially contributed to his pulmonary impairment, not withstanding [sic] the fact that his

chest x-ray is negative for Coal Worker's Pneumoconiosis,

which, by the way, even if originally present tends to fade

out in the presence of severe emphysema.

(J.A. 39.) (emphasis added). Dr. Garson, however, was unable to

determine the extent to which Filer's disability was caused by cigarette smoking or by coal dust exposure. (J.A. 90.)

Seventh, on March 2, 1992, Dr. Gregory J. Fino, a pulmonary specialist, on the basis of physical examination, medical history, and respiratory testing and x-rays, expressed the view (confirming his report

of November 22, 1991) that:

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There is no pneumoconiosis, but there is disabling respiratory impairment arising out of cigarette smoking and

[Filer's] hereditary predisposition to asthma. This man

would be as disabled as I find him now had he never stepped

foot in the coal mines.

(J.A. 27) (emphasis added).1

Confronted with this ambivalent record, the ALJ expressed the following opinion:

In this case, two examining physicians have concluded that

claimant's disabling pulmonary impairment arises out of

coal mine employment (Dr. Cho and Dr. Garson), and two

examining physicians have found that claimant's pulmonary

impairment is unrelated to his coal mine employment (Dr.

Renn and Dr. Fino). (Drs. Pfister and Smith examined

claimant in 1986, before his pulmonary condition became

severe.) Frankly, I find it difficult to accept that claimant's

severe pulmonary impairment has no relation to his forty

two years of exposure to coal dust while working as a coal

miner. The opinions of Drs. Renn and Fino in this regard

are simply not credible. I note also that while Dr. Renn and

Dr. Fino are highly qualified board certified pulmonologists,

Dr. Garson is board certified in preventive medicine which

includes occupational medicine. His credentials are very

impressive, and I believe that he is as qualified as a physician who is board certified in pulmonary diseases to determine the etiology of a lung disease.

The findings of Dr. Cho and Dr. Garson are also corroborated by the opinions of Dr. Gosai, who diagnosed possible

black lung disease, and Dr. Aneja, who diagnosed cor pul-

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1 The ALJ's opinion reports that Dr. A. Dahahn, a certified pulmonologist, reviewed the medical evidence and on January 21, 1992,

opined that there was insufficient evidence to justify diagnosis of occupational pneumoconiosis and that Filer's respiratory disability had not

been caused by coal dust exposure or occupational pneumoconiosis. (J.A.

182). The record does not contain Dr. Dahahn's report.

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monale, one of the indicia of coal workers' pneumoconiosis.

Finally, I feel that it is significant that Dr. Fino agreed that

the symptoms of claimant's asthma could be exacerbated by

exposure to coal dust, which places claimant's asthma

within the definition of pneumoconiosis in § 718.201. I

therefore conclude that pneumoconiosis has been established at (a)(4).

(J.A. 183.) (emphasis added). The Board affirmed the ALJ's decision

as based on substantial evidence. (J.A. 186.)

DISCUSSION

To establish entitlement to disability benefits, Filer was obligated

to prove: (1) the existence of pneumoconiosis; (2) that pneumoconiosis arose out of coal mine employment; and (3) that his totally disabling pulmonary disease is due, at least in part, to pneumoconiosis.

Robinson v. Pickands Mather & Co., 914 F.2d 35, 36 (4th Cir. 1990).

Judicial review of the administrative decision is governed by the substantial evidence standard. Consequently, the administrative determination will not be disturbed if it is supported by substantial evidence

in the record as a whole. Hobbs, 45 F.3d at 820. Accordingly, we

must review the record independently and determine whether substantial evidence supports the findings of the ALJ. Cox v. ShannonPocahontas Mining Co., 6 F.3d 190, 192 (4th Cir. 1993); Jordan v.

Califano, 582 F.2d 1333, 1335 (4th Cir. 1978).

However, before an appellate court can determine whether substantial evidence exists to support the administrative determination, it

must "first ascertain whether the Secretary has discharged his duty to

consider all relevant evidence." Jordan, 582 F.2d at 1335. This is

because the courts "face a difficult task in applying the substantial

evidence test when the Secretary has not considered all relevant evidence." Arnold v. Secretary of H.E.W., 567 F.2d 258, 259 (4th Cir.

1977). As we explained in Arnold:

Unless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by

substantial evidence approaches an abdication of the court's

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"duty to scrutinize the record as a whole to determine

whether the conclusions reached are rationale."

Id. (citations omitted). Moreover, "bald conclusion[s], unsupported by

reasoning or evidence, [are] generally of no use to a reviewing court,

except in the very rare instance when a case is so one-sided as to be

obvious." Jordan, 582 F.2d at 1335. And,"conclusory administrative

determinations may conceal arbitrariness." Id.

To eliminate these problems, the ALJ is obligated to consider all

relevant evidence and "must indicate explicitly that such evidence has

been weighed and its weight." Id. (citing Arnold, 567 F.2d at 259). In

particular, the ALJ is obligated to explain the specific reasons for

attributing greater weight to certain medical opinions than others and

to address specifically each medical opinion which disagrees with his

ultimate conclusion. See Hobbs, 45 F.3d at 819. Failure to give proper

consideration to all relevant evidence requires remand for further consideration. Maxey v. Califano, 598 F.2d 874, 875 (4th Cir. 1979);

Arnold, 567 F.2d at 259-60.

The administrative determination in this case must be remanded

because the decision of the ALJ does not reflect that all relevant evidence has been considered. Nor does the ALJ's opinion satisfy the

requirement for an on-the-record explication of the reasons which

caused him to attribute greater weight to certain medical opinions and

reject others and which prompted him to disregard medical opinions

which were at odds with the ultimate conclusions he reached.

Although it is true that the ALJ's opinion in this case summarizes the

medical reports and the testimony of the doctors, the articulated reason for the ALJ's rejection of the opinions of Drs. Renn and Fino is

merely that they "are simply not credible." (J.A. 183.) The ALJ does

not share the reasons for this credibility determination, but it appears

in the following context: "[F]rankly, I find it difficult to accept that

claimant's severe pulmonary impairment has no relation to his forty

two years of exposure coal dust while working as a coal miner. The

opinions of Drs. Renn and Fino in this regard are simply not credible." (J.A. 183.) (emphasis added).

Then, having stated that he finds Dr. Garson, who is certified in

preventive medicine, to be "equally as qualified" as Drs. Renn and

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Fino, who are certified in pulmonary medicine, the ALJ did not

explain why he credited an opinion from Dr. Garson which appears

to be at odds with the opinion that Dr. Garson had expressed just six

months earlier. In sum, the critical component of the ALJ's opinion

is nothing more than a bald conclusion of the type which is of little,

if any, use to a reviewing court.

We note that the ALJ also reached the conclusion that the findings

of Dr. Cho and Dr. Garson were corroborated by the opinion of Dr.

Gosai because, as the ALJ put it, he "diagnosed possible black lung

disease" and by the opinion of Dr. Aneja because he "diagnosed cor

pulmonale," one of the indicia of coal workers' pneumoconiosis. It

may be that a speculative ("possible") diagnosis can provide corroboration but, without an adequate explanation of why that is the case,

this court cannot properly perform the review required of it.

The opinion of the ALJ is not unlike the one we found defective

in Arnold because, although the ALJ claimed to have considered all

of the evidence, the opinion gave no indication of the weight afforded

to certain evidence and in fact amounted to no more than a "bare

recital that he considered the evidence." Arnold, 567 F.2d at 260. On

the other hand, the ALJ's opinion here is unlike the opinion in Hobbs

where the ALJ "set forth reasons why he had attributed greater weight

to certain medical opinions and he specifically addressed each medical opinion which disagreed with his ultimate conclusion." Hobbs, 45

F.3d at 820.

It is especially important where, as here, there are negative chest

x-rays and undisputed evidence of disability, that the ALJ weigh, on

the record, the conflicting medical opinions and evidence and explain

precisely why one line of medical authority is adopted and the other

is rejected. Indeed, unless the ALJ's opinion confronts the conflicts,

weighs the opinions and the evidence and articulates why one line of

authority is persuasive and the other is not, judicial review under a

substantial evidence standard is not possible.

That is of particular significance here because the ALJ relied upon

the medical opinion of Dr. Garson, who is certified in preventive

medicine, and who only a few months previously had expressed what

appears to be a materially different opinion and on the testimony of

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Dr. Cho whose credibility is called into question by virtue of his diagnosis of a contributing disability while at the same time espousing the

belief that simple coal workers' pneumoconiosis is never disabling.2

Furthermore, the ALJ rejected, with no substantive explanation, the

views of several physicians, certified in pulmonary medicine, who

have concluded either that there is an absence of pneumoconiosis or

that the evidence is insufficient to support a finding of pneumoconiosis. Decisions on conflicting evidence such as this must be addressed

and explained at the administrative level before judicial review under

the substantial evidence standard can be accomplished meaningfully.

For these reasons, the decision of the Benefits Review Board is

REVERSED and the case is REMANDED for further proceedings

consistent with this Opinion.

REVERSED, VACATED, AND REMANDED

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2 We need not here consider Consolidation's argument that, under Penn

Alleghany Coal Co. v. Mercatell, 878 F.2d 106 (3rd Cir. 1989), Dr.

Cho's medical opinion must be rejected because he subscribes to the

view that "simple coal worker's pneumoconiosis" is never disabling.

That issue, however, must be considered in the proceedings on remand.

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