PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1839

WESTMORELAND COAL COMPANY, INCORPORATED,

Petitioner,

v.

JARRELL D. COCHRAN; DIRECTOR, OFFICE OF WORKERS’ 

COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; 

DEPARTMENT OF LABOR; BENEFITS REVIEW BOARD,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. 

(10-0522-BLA)

Argued: March 22, 2013 Decided: June 4, 2013

Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Petition for review denied by published opinion. Judge Wynn 

wrote the majority opinion, in which Judge Motz joined. Chief 

Judge Traxler wrote a dissenting opinion.

ARGUED: Thomas Michael Hancock, BOWLES RICE, LLP, Charleston, 

West Virginia, for Petitioner. Ryan Christopher Gilligan, 

WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia; 

Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR, 

Washington, D.C., for Respondents. ON BRIEF: Paul E. Frampton, 

BOWLES RICE, LLP, Charleston, West Virginia, for Petitioner. 

Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, 

Virginia, for Respondent Jarrell D. Cochran. M. Patricia Smith, 

Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor, 
2

Gary K. Stearman, Counsel for Appellate Litigation, UNITED 

STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal 

Respondents.
3

WYNN, Circuit Judge:

Westmoreland Coal Company, Inc. challenges an

Administrative Law Judge’s (“ALJ”) decision, affirmed by the 

Benefits Review Board (the “Board”), to award black lung 

benefits to Westmoreland’s former employee, Jarrell Cochran. 

Because the award of benefits is supported by the record and 

accords with applicable law, we must deny Westmoreland’s 

petition for review.

I.

The Black Lung Benefits Act (the “Act”), 30 U.S.C. § 901 et 

seq., entitles former coal miners totally disabled by 

pneumoconiosis—commonly called black lung disease—to benefits. 

The Act’s implementing regulations define “pneumoconiosis” as “a 

chronic dust disease of the lung and its sequelae, including 

respiratory and pulmonary impairments, arising out of coal mine 

employment.” 20 C.F.R. § 718.201(a). 

“[P]neumoconiosis can take two forms”: “clinical”

pneumoconiosis and “legal” pneumoconiosis. Harman Min. Co. v. 

Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 308 (4th 

Cir. 2012). “Clinical” pneumoconiosis “consists of those 

diseases recognized by the medical community as pneumoconioses, 

i.e., the conditions characterized by permanent deposition of 

substantial amounts of particulate matter in the lungs and the 
4

fibrotic reaction of the lung tissue to that deposition caused 

by dust exposure in coal mine employment.” 20 C.F.R. § 

718.201(a)(1). “Legal” pneumoconiosis is “significantly broader 

than the medical definition,” Hobbs v. Clinchfield Coal Co., 45 

F.3d 819, 821 (4th Cir. 1995), and includes “any chronic lung 

disease or impairment . . . arising out of coal mine employment 

. . . includ[ing] . . . any chronic restrictive or obstructive 

pulmonary disease,” 20 C.F.R. § 718.201(a)(2). For purposes of 

the Act, “arising out of coal mine employment” means

“significantly related to, or substantially aggravated by, dust 

exposure in coal mine employment.” 20 C.F.R. § 718.201(b).

A claimant under the Act can establish pneumoconiosis with 

the aid of a regulatory presumption of pneumoconiosis, id. § 

718.305(a), or with evidence including x-rays, biopsies, and 

medical opinions from physicians “exercising sound medical 

judgment, notwithstanding a negative X-ray,” id. § 718.202. 

“[T]o determine whether a preponderance of all of the evidence 

establishes the existence of pneumoconiosis,” ALJs must consider 

all the relevant evidence together. Island Creek Coal Co. v. 

Compton, 211 F.3d 203, 208 (4th Cir. 2000).

II.

For at least sixteen years between 1964 and 1995, Cochran 

worked in West Virginia coal mines, most recently for 
5

Westmoreland. At the mines, Cochran had various jobs—above and 

below ground—working as a roof bolter, mechanic, shuttle car 

operator, general laborer, and truck driver. Cochran also has a 

history of smoking, approximately one pack of cigarettes per 

week for twenty years.

In February 2008, Cochran filed this claim for black lung

benefits.1 The Department of Labor awarded benefits, payable by 

Westmoreland, and Westmoreland requested a formal hearing before 

an ALJ.

In November 2009, the ALJ conducted a hearing on Cochran’s 

claim. And in May 2010, the ALJ issued a detailed decision 

awarding Cochran benefits. The ALJ found that the evidence 

failed to establish that Cochran suffers from clinical 

pneumoconiosis but did establish that Cochran suffers from legal 

pneumoconiosis. Regarding this legal pneumoconiosis finding, 

the ALJ chose to credit Dr. D. L. Rasmussen’s medical opinion 

over the opinions of Dr. George L. Zaldivar and Dr. Kirk E. 

Hippensteel, explaining that the latter two “primarily 

concentrated on explaining why . . . the miner did not suffer 

from clinical pneumoconiosis”—which does not preclude legal 

pneumoconiosis—and that their conclusions were “inconsistent 

 1 Cochran previously filed a claim for benefits in 1995; 

that claim was denied.
6

with the scientific evidence set forth” in the Preamble of the

Act’s implementing regulations.2 J.A. 379. Further, the ALJ 

found that Cochran is totally disabled as a result of his 

pneumoconiosis, and thus awarded Cochran black lung benefits. 

Westmoreland appealed to the Board, and in June 2011, the 

Board concluded that the ALJ permissibly used the Preamble to 

evaluate conflicting medical opinions about the cause of 

Cochran’s disability and that substantial evidence supported the 

ALJ’s ultimate finding of legal pneumoconiosis.3 Accordingly, 

the Board affirmed the ALJ’s decision and order awarding 

benefits. Westmoreland now petitions this Court for review.

III.

In black lung benefits cases, this Court’s “review of the 

Board’s order is limited.” Harman, 678 F.3d at 310 (internal 

quotations omitted). We review “whether substantial evidence”—

i.e., “such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion[,]” Consolid. Edison Co. of 

NY v. NLRB, 305 U.S. 197, 229 (1938)—“supports the factual 

 2 “The preamble . . . sets forth the medical and scientific 

premises relied on by the Department” of Labor when it amended 

the black lung benefits regulations to revise the definition of 

legal pneumoconiosis. Harman, 678 F.3d at 314.

3 Westmoreland did not appeal the ALJ’s finding that Cochran 

suffers from a totally disabling respiratory impairment.
7

findings of the ALJ and whether the legal conclusions of the 

[Board] and ALJ are rational and consistent with applicable 

law,” Harman, 678 F.3d at 310 (internal quotations omitted).

“As long as substantial evidence supports an ALJ’s findings, 

‘[w]e must sustain the ALJ’s decision, even if we disagree with 

it.’” Id. (quoting Smith v. Chater, 99 F.3d 635, 637–38 (4th 

Cir. 1996)). We are not at liberty to “substitute our judgment 

for that of the ALJ” but rather must “defer to the ALJ’s 

evaluation of the proper weight to accord” the evidence, 

including “conflicting medical opinions.” Id. (quotation marks 

omitted).

On appeal, Westmoreland argues that: (1) the evidence

derived from Dr. Rasmussen’s testimony was insufficient to 

support the ALJ’s finding of legal pneumoconiosis; (2) the ALJ 

failed to consider all the relevant evidence by improperly 

discounting certain expert opinions; and (3) the ALJ erroneously 

interpreted the Preamble to create an irrebuttable presumption 

of pneumoconiosis. We address each argument in turn.

IV.

A.

We turn first to Westmoreland’s contention that Dr. 

Rasmussen’s testimony was insufficient to support the ALJ’s

finding of legal pneumoconiosis. Specifically, Westmoreland 
8

compares Dr. Rasmussen’s testimony here to his testimony in 

another black lung case, United States Steel Mining Co., Inc. v. 

Director, Office of Workers’ Compensation Programs, 187 F.3d 384 

(4th Cir. 1999) (“Jarrell”), in which this Court found that the 

evidence in the record was insufficient to support an award of 

benefits. 

In Jarrell, the ALJ had awarded survivor benefits to a 

claimant “relying solely” on Dr. Rasmussen’s testimony that 

“[i]t is possible that [the coal miner’s] death could have 

occurred as a consequence of his pneumonia superimposed upon his 

chronic lung disease, including his occupational pneumoconiosis 

and occupationally related emphysema” and “[i]t can be stated 

that [the coal miner’s] occupational pneumoconiosis was a 

contributing factor to his death.” Id. at 387, 389 (emphasis 

added). This Court reversed, holding that the mere possibility 

of causation was insufficient to support finding a nexus between 

a claimant’s pneumoconiosis and his death. 

Here, by contrast, Dr. Rasmussen did not testify that coal 

mine dust or cigarette smoke could be the cause of Cochran’s 

respiratory impairment. Nor did he testify that he did not know 

or could not tell whether coal mine dust contributed to 

Cochran’s respiratory impairment. Rather, Dr. Rasmussen 

testified that both coal mine dust and cigarette smoke were

causes, affirmatively asserting “Mr. Cochran’s coal mine dust 
9

exposure must be considered a significant contributing factor to 

his what should be described as overlap syndrome . . . and that

he does have at least legal pneumoconiosis, i.e. COPD/emphysema 

caused in significant part by coal mine dust exposure.” J.A. 

39. 

Dr. Rasmussen stated that the effects of coal mine dust and 

cigarette smoke exposure “are independent, but additive[,] with 

those smokers or non-smokers who are exposed to the greatest 

amount of dust exhibit[ing] the greatest impairment.” J.A. 38. 

And as the ALJ correctly explained, the Act does not require 

that coal mine dust exposure be the sole cause of a claimant’s 

respiratory impairment. See 20 C.F.R. § 718.201(b) (defining 

“arising out of coal mine employment” as “significantly related 

to, or substantially aggravated by, dust exposure in coal mine 

employment”); see also Consolidation Coal Co. v. Swiger, 98 F. 

App’x 227, 238 (4th Cir. 2004) (affirming award of black lung 

benefits in case in which experts “found that [claimants]’s 

disability was caused in part by smoking and conceded that it 

was difficult to differentiate between the effects caused by 

smoking and the effects caused by coal mine dust”).

Given Dr. Rasmussen’s expert opinion, the ALJ’s conclusion 

that Cochran’s “COPD/emphysema [is] due in part to coal mine 

dust exposure” was supported by substantial evidence. J.A. 379. 
10

Thus, the Board did not err in affirming the ALJ’s finding of

legal pneumoconiosis.

B.

Westmoreland also argues that the ALJ erred by improperly 

discounting the opinions of Dr. Zaldivar and Dr. Hippensteel in 

favor of Dr. Rasmussen’s. Specifically, in deciding to credit 

Dr. Rasmussen’s opinion over Dr. Zaldivar’s and Dr. 

Hippensteel’s, the ALJ stated that

much of the pertinent dispute between these medical 

experts centers on the etiology of the miner’s 

emphysema. In this particular regard, the opinions of 

Drs. Hippensteel and Zaldivar are inconsistent with 

the scientific evidence set forth in the [Act’s] 

Preamble . . . Thus, I give their opinions concerning 

the etiology of the miner’s emphysema less credit than 

Dr. Rasmussen’s.

J.A. 379. Westmoreland contends that the ALJ erred by 

misinterpreting the Preamble and discrediting the testimony of

Dr. Zaldivar and Dr. Hippensteel. We disagree.

The Preamble states, in pertinent part, that medical 

literature “support[s] the theory that dust-related emphysema 

and smoke-induced emphysema occur through similar mechanisms . . 

. .” Regulations Implementing the Federal Coal Mine Health and 

Safety Act of 1969, 65 Fed. Reg. 79920, 79943 (Dec. 20, 2000). 

In Harman, a recent, very similar black lung case, this Court 

made plain that an ALJ may consider the Act’s Preamble in 
11

assessing medical expert opinions. Harman, 678 F.3d at 314–15. 

We also noted that “the only other circuits to address the 

question have upheld an ALJ’s invocation of the same preamble.” 

Id. at 315 (citing Helen Mining Co. v. Dir., O.W.C.P., 650 F.3d 

248, 256 (3d Cir. 2011) (noting that “[t]he ALJ gave less 

weight” to the opinions of an employer’s expert because it was 

“inconsistent with 20 C.F.R. § 718.202(a)(1)-(4) and with the 

preamble to the regulations”); and Consolidation Coal Co. v. 

Dir., O.W.C.P., 521 F.3d 723, 726 (7th Cir. 2008) (describing as 

“sensible” the ALJ’s decision to give little weight to the 

opinion of employer’s expert because, in part, it conflicted 

with the Preamble’s statements on the clinical significance of 

coal dust-induced COPD)).

Nevertheless, Westmoreland argues that the ALJ 

misinterpreted the Preamble to mean that smoke-induced and coal 

mine dust-induced respiratory impairments always are 

indistinguishable. According to Westmoreland, Dr. Zaldivar and 

Dr. Hippensteel relied on advancements in science and medicine

since the implementation of the Preamble that purportedly

facilitate the differentiation of coal mine dust-induced and 

smoke-induced emphysema, which the ALJ supposedly ignored 

because of how he interpreted the Preamble. In so arguing, 

Westmoreland overstates the ALJ’s reliance on the Preamble. 
12

Indeed, the ALJ did not state that he would not consider 

Dr. Zaldivar’s and Dr. Hippensteel’s opinions, nor did he 

suggest that he was obligated to accept the scientific studies 

in the Preamble over any other evidence. Rather, the ALJ 

explained that he chose to give Dr. Rasmussen’s opinion more 

weight in part because it aligned with the scientific findings 

in the Preamble. And neither Dr. Zaldivar nor Dr. Hippensteel 

testified as to scientific innovations that archaized or 

invalidated the science underlying the Preamble. In fact, only 

Dr. Zaldivar cited literature that post-dates the Preamble—none 

of which appears to even discuss the effects of coal mine dust 

exposure on the lungs.

Moreover, the ALJ did not rely solely on the Preamble for 

giving less weight to Dr. Zaldivar’s and Dr. Hippensteel’s 

opinions. Rather, the ALJ discredited their opinions also 

because both experts “primarily concentrated on explaining why 

they believed the miner did not suffer from clinical 

pneumoconiosis and why clinical pneumoconiosis was not 

responsible for his symptoms or impairment” without addressing 

legal pneumoconiosis. J.A. 379. The evidence in the record 

bears this out: For example, when Dr. Hippensteel was asked 

“why do you think that Mr. Cochran’s problem is asthma as 

opposed to legal pneumoconiosis,” he replied “there is no 

specific association between coal mine dust exposure and the 
13

development or causation of asthma . . . . It has not been 

associated with any other findings that would suggest that he 

had developed clinical pneumoconiosis . . . .” J.A. 175. 

The ALJ agreed with Dr. Hippensteel and Dr. Zaldivar that 

Cochran does not suffer from clinical pneumoconiosis. But the 

Preamble and regulations make clear that the absence of clinical 

pneumoconiosis cannot be used to rule out legal pneumoconiosis. 

Here, the ALJ found these experts’ opinions had less probative 

value with regard to whether Cochran has legal pneumoconiosis, 

the salient diagnosis for awarding benefits here. Thus, the ALJ 

provided an alternate basis sufficient to uphold his weighing of 

the evidence even if his use of the Preamble were error—although 

we conclude that it was not. See Harman, 678 F.3d at 313 

(“[E]ven if we were to agree . . . that the ALJ’s invocation of 

the preamble in discrediting [an expert’s] opinion was improper 

(which we do not), any such error would likely be harmless 

because the ALJ provided [] independent reasons . . . for 

dismissing [the] opinion.”).

Ultimately, as the ALJ explained, Cochran’s claim reduces 

to a case of conflicting medical opinions, i.e., a “battle of 

the experts.” It is the role of the ALJ—not the appellate 

court—to resolve that battle. E.g., Harman, 678 F.3d at 310. 

The ALJ’s lengthy, detailed order reveals a careful 

consideration of the experts’ qualifications, their opinions, 
14

and the underlying medical science. The order also explains why 

the ALJ chose to give Dr. Rasmussen’s opinion more weight. 

Nothing before us indicates that the ALJ “substitute[d] his own 

medical opinion” for those of Dr. Zaldivar and Dr. Hippensteel, 

Reply Br. at 6l, or otherwise committed reversible error. Nor 

may we substitute our own judgment for the ALJ’s and reweigh the 

evidence. Accordingly, we conclude that the Board properly 

affirmed the ALJ’s finding that Cochran suffers from legal 

pneumoconiosis.

C.

Finally, Westmoreland contends that the ALJ erroneously 

placed the burden of proof on Westmoreland to rule out coal mine 

dust as a cause of Cochran’s respiratory impairment. In 

particular, Westmoreland cites to a single sentence in the ALJ’s 

order stating that “it is not established that coal dust did not 

aggravate [Cochran’s] asthma.” J.A. 379. Westmoreland takes 

this sentence out of context.

Indeed, reading the decision and order as a whole, it is 

clear that this was not a statement of the ALJ’s view as to the 

claimant’s burden or the sufficiency of the evidence. Rather,

this was simply part of the ALJ’s explanation for why he chose 

not to credit the opinions of Dr. Hippensteel and Dr. Zaldivar

regarding the cause of Cochran’s condition. Elsewhere in the 
15

order, the ALJ clearly stated “[t]he claimant has the burden of 

proving the existence of pneumoconiosis[,]” J.A. 372, and 

recognized that the claimant bears the “burden of proof in 

establishing the existence of ‘legal’ pneumo-coniosis.” J.A. 

379. Accordingly, we hold that ALJ properly placed the burden 

of proof on Cochran to establish the existence of legal 

pneumoconiosis.

V.

In sum, the ALJ’s decision and order to award benefits was 

supported by substantial evidence, rational, and consistent with 

applicable law. The Board therefore did not err in affirming 

the ALJ’s decision and order, and we accordingly deny 

Westmoreland’s petition for review.

PETITION FOR REVIEW DENIED
16

TRAXLER, Chief Judge, dissenting:

With respect, I dissent. In my opinion, the ALJ’s decision 

to award benefits is not supported by substantial evidence, and 

the ALJ erred in shifting the burden to Westmoreland to disprove 

pneumoconiosis. I also believe the ALJ erred in discrediting 

the opinions of Drs. Zaldivar and Hippensteel based upon the 

language in the Preamble.

I.

Highlighting generic findings and general statistics 

regarding the physiological effects of coal dust exposure and 

cigarette smoking, and based upon a perceived inability to 

distinguish between diseases and symptoms caused by them, Dr. 

Rasmussen summarily concluded that “Cochran’s coal mine dust 

exposure must be considered a significant contributing factor 

to” his pulmonary condition. J.A. 39. The conclusion contains 

the requisite words, but the underlying basis rests in mere 

speculation and possibilities. See J.A. 39 (“While it is 

theoretically possible that all of Mr. Cochran’s impairment and 

lung damage is the consequence of cigarette smoking, it is also 

theoretically possible it is all due to coal mine dust 

exposure.”); id. (Cochran’s condition “could be caused by both 

asthma and toxic effects of smoking and coal mine dust.”); id.

(“We have no basis for excluding either” as a cause.).
17

Apparently accepting the view that neither theoretical 

cause could be ruled out as a contributing one, the ALJ then 

compounded the error by imposing upon the employer the burden of 

proving that coal dust exposure was not a contributing cause, 

finding that:

it [was] not established that coal dust did not 

aggravate[] [Cochran’s] asthma. I note, in 

particular, Dr. Hippensteel’s admission on crossexamination that coal dust could aggravate one’s 

asthma. Dr. Zaldivar explained that coal mine dust 

“can cause physiological changes that are eventually 

indistinguishable from emphysema.”

J.A. 379 (emphasis added).

This is not a valid basis for awarding benefits. See

United States Steel Mining Co. v. Dir., OWCP, 187 F.3d 384, 390 

(4th Cir. 1999) (“Jarrell”) (rejecting as insufficient a 

similarly speculative opinion offered by Dr. Rasmussen - that it 

was “‘possible that death could have occurred as a consequence 

of [the miner’s] pneumonia superimposed upon ... his 

occupational pneumoconiosis’ and therefore ‘[i]t c[ould] be 

stated that [the miner’s] occupational pneumoconiosis was a 

contributing factor to his death’” (emphasis omitted)); Peabody 

Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997) (A “miner’s 

pneumoconiosis must be more than merely a speculative cause of 

his disability” before an ALJ can award benefits). In the 

absence of x-rays, a biopsy, or a valid regulatory presumption, 

the burden rests squarely upon the miner to prove by a reasoned 
18

medical opinion that his coal mine dust exposure significantly 

contributed to or substantially aggravated his chronic 

obstructive pulmonary disease. Dr. Rasmussen’s opinion fails to 

rise to the requisite standard and the ALJ, in consequence, 

improperly shifted the burden to the employer to disprove that 

Cochran suffered from legal pneumoconiosis. Accordingly, I 

would reverse the award of benefits. 

II.

Even if I were to consider Dr. Rasmussen’s opinion as 

sufficiently reliable and probative on the issue, I believe the 

ALJ additionally erred in discrediting the opinions of Drs. 

Hippensteel and Zaldivar based upon the language in the 

Preamble. 

The Preamble intended to make clear that obstructive lung 

diseases (such as chronic obstructive pulmonary disease and 

emphysema) can fall within the legal definition of 

pneumoconiosis, but only if the claimant can satisfy his burden 

of proving that the pulmonary condition was significantly 

related to or substantially aggravated by coal dust exposure:

The Department attempts to clarify that not all 

obstructive lung disease is pneumoconiosis. It 

remains the claimant’s burden of persuasion to 

demonstrate that his obstructive lung disease arose 

out of his coal mine employment and therefore falls 

within the statutory definition of pneumoconiosis.
19

65 Fed. Reg. 79920-01, 79923; see also 65 Fed. Reg. 79920-01, 

79938 (“The revised definition will eliminate the need for 

litigation of this issue on a claim-by-claim basis, and render 

invalid as inconsistent with the regulations medical opinions 

which categorically exclude obstructive lung disorders from 

occupationally-related pathologies. The Department reiterates, 

however, that the revised definition does not alter the former 

regulations’ requirement that each miner bear the burden of 

proving that his obstructive lung disease did in fact arise out 

of his coal mine employment, and not from another source.” 

(emphasis added) (internal citation omitted)).

Consistent with the conclusion that coal dust exposure can 

cause obstructive lung disease, the Preamble also notes medical 

studies that “support the theory that dust-induced emphysema and 

smoke-induced emphysema occur through similar mechanisms.” id.

at 79943 (emphasis added). However, while the Preamble 

recognizes that the mechanisms by which smoke and coal mine dust 

cause lung destruction are similar, it does not state that the 

mechanisms or “the signs and symptoms [are] identical”, J.A. 39, 

as Dr. Rasmussen opined, J.A. 39, or that the causes of an 

obstructive pulmonary disease (smoking and/or coal dust exposure 

and/or asthma) cannot be determined or ruled out by a qualified 

physician. If that were the case, no physician could ever rule 

out any degree of coal dust exposure as a significant 
20

contributing cause of an obstructive pulmonary disease, and the 

Preamble would effectively become an irrebuttable presumption 

that coal dust exposure, if it is proven, must be considered to 

have significantly caused or substantially aggravated the 

pulmonary condition because no one could rule it out. Taking 

the language of the Preamble at face value, it is clear to me 

that the opinions of Drs. Zaldivar and Hippensteel are not 

inconsistent with the Preamble’s findings.

This case is also distinguishable from Harman, wherein we 

upheld the decision of an ALJ discrediting a physician’s opinion 

as inconsistent with the Preamble. The physician in that case 

“based [his] conclusion, in part, on his opinion that legal 

pneumoconiosis ‘cannot’ cause obstructive pulmonary disease.” 

Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 311 (4th Cir. 

2012) (emphasis added). We also upheld the ALJ’s decision to 

discredit a second physician’s opinion because he “improperly 

believed that pneumoconiosis cannot cause disability in the 

absence of a positive x-ray,” another categorical rejection of 

the DOL’s conclusions in the Preamble. Id. at 311-12 (emphasis 

added) (internal quotation marks omitted). The opinions of Drs. 

Zaldivar and Hippensteel, in contrast, are not categorical 

rejections of the premise that chronic obstructive pulmonary 

disease can be caused or aggravated by coal dust exposure, or 
21

that pneumoconiosis cannot exist in the absence of a positive xray finding.

Finally, the ALJ’s conclusion that the opinions of Drs. 

Zaldivar and Hippensteel should be discredited because they 

focused more on clinical than legal pneumoconiosis also finds no 

support in the record. When the evaluations were conducted by 

Drs. Zaldivar and Hippensteel, Dr. Rasmussen had diagnosed 

clinical pneumoconiosis based upon his positive x-ray reading. 

It is not surprising, therefore, that Drs. Zaldivar and 

Hippensteel might likewise be focused more on addressing the 

diagnosis of clinical pneumoconiosis made by their colleague at 

the time. Nevertheless, both physicians addressed the thenalternative claim of legal pneumoconiosis, exhibited (as the ALJ 

acknowledged) a correct understanding of its distinction from 

clinical pneumoconiosis, and explained their rationales for 

rejecting both forms of pneumoconiosis.

Accordingly, because I believe the ALJ discredited the 

opinions of Drs. Zaldivar and Hippensteel on invalid bases, I 

would, at a minimum, vacate and remand the case for 

reconsideration in light of all of the medical evidence and 

pursuant to a proper interpretation of the Preamble.