UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WESTMORELAND COAL COMPANY, 

INCORPORATED,

Petitioner,

v.  No. 02-1917 BOBBY R. COOK; DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents. 

On Petition for Review of an Order

of the Benefits Review Board

(01-864-BLA)

Submitted: October 1, 2003

Decided: February 17, 2004

Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.

Reversed by unpublished per curiam opinion. 

COUNSEL

Douglas Allan Smoot, JACKSON & KELLY, Charleston, West Virginia; Kathy Lynn Snyder, JACKSON KELLY, PLLC, Morgantown,

West Virginia, for Petitioner. Bobby R. Cook, Fenwick, West Virginia; Patricia May Nece, Barry H. Joyner, UNITED STATES

DEPARTMENT OF LABOR, Washington, D.C., for Respondents. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Westmoreland Coal Company seeks review of the decision and

order of the Benefits Review Board affirming the administrative law

judge’s award of black lung benefits pursuant to 30 U.S.C. §§ 901-

945 (2000). Because our review of the record discloses that the ALJ’s

decision is not supported by substantial evidence, we reverse the

award of benefits.

We review decisions of the BRB to determine whether the BRB

properly found that the ALJ’s decision was supported by substantial

evidence and was in accordance with law. See Doss v. Dir., Office of

Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995). In making this determination, we conduct an independent review of the

record in deciding whether the ALJ’s findings are supported by substantial evidence. See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193

(4th Cir. 1995). Substantial evidence is more than a scintilla, but only

such evidence that a reasonable mind could accept as adequate to support a conclusion. See Lane v. Union Carbide Corp., 105 F.3d 166,

170 (4th Cir. 1997). Subject to the substantial evidence requirement,

the ALJ has the sole authority to make credibility determinations and

resolve inconsistencies or conflicts in the evidence. See Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993). An ALJ,

however, may rely only on a medical opinion that constitutes a reasoned medical judgment. See Freeman United Coal Mining Co. v.

Cooper, 965 F.2d 443, 448 (7th Cir. 1992).

To establish that he is entitled to black lung benefits in a case under

Part 718, a miner must prove: "(1) he has pneumoconiosis; (2) the

pneumoconiosis arose out of coal mine employment; (3) he has a

totally disabling respiratory or pulmonary condition; and

(4) pneumoconiosis is a contributing cause to his total respiratory disability." Milburn Colliery Co. v. Hicks, 138 F.3d 524, 529 (4th Cir.

2 WESTMORELAND COAL CO. v. COOK
1998). A claimant may establish the existence of pneumoconiosis by

means of (1) chest x-rays; (2) biopsy or autopsy evidence;

(3) invocation of the presumptions at 20 C.F.R. §§ 718.304 - 718.306;

or (4) medical opinion evidence. See 20 C.F.R. § 718.202(a) (2003).

In findings that are not challenged on appeal, the ALJ determined that

Cook failed to establish the existence of pneumoconiosis by x-ray evidence, that there was no biopsy or autopsy evidence, and that the presumptions of 20 C.F.R. §§ 718.304 - 718.306 were not applicable to

Cook’s claim. Therefore, the only basis upon which Cook may establish that he suffers from pneumoconiosis is medical opinion evidence

pursuant to 20 C.F.R. § 718.202(a)(4) (2003). 

In finding the medical opinion evidence sufficient to establish that

Cook suffered from pneumoconiosis, the ALJ relied primarily upon

the opinion of Dr. Walker, a chest surgeon who performed surgery on

Cook in August 1986. In his post-operative report, Dr. Walker noted

that "[a]t thoracotomy, the right lung was black. There were small,

palpable nodules throughout. The right lung fissures were approximately fifty percent fused. The lung was emphysematous." On Cook’s

discharge from the hospital following surgery, Dr. Walker’s final

diagnosis was a right parasternal hernia and pneumoconiosis. In addition to Dr. Walker, doctors Rasmussen, Diaz, and Aguilar also diagnosed pneumoconiosis. Doctors Fino, Zaldivar, and Hippensteel

concluded that Cook did not suffer from the disease, although Dr.

Zaldivar, in a supplemental report, acknowledged that "[t]he report

given by Dr. Walker that at the time of the thoracotomy the lungs

appeared black and there were palpable nodules may indicate that

coal workers’ pneumoconiosis might be present that is not seen radiographically." 

The ALJ concluded that Dr. Walker’s opinion, supported by the

opinions of doctors Rasmussen, Diaz, and Aguilar, and Dr. Zaldivar’s

comment, was sufficient to outweigh both the preponderance of x-ray

readings that were negative, and the contrary opinions of doctors

Fino, Zaldivar, and Hippensteel. The ALJ accorded great weight to

Dr. Walker’s opinion because Dr. Walker had served as the Chairman

of the West Virginia Occupational Pneumoconiosis Board and therefore possessed extensive experience in evaluating pneumoconiosis,

and more importantly, Dr. Walker had the exclusive opportunity to

physically observe and examine one of Cook’s lungs during surgery.

WESTMORELAND COAL CO. v. COOK 3
Our review of the record leads us to conclude that, although it is a

close question, the ALJ properly weighed the evidence and concluded

that it established that Cook suffered from pneumoconiosis. 

A miner is totally disabled due to pneumoconiosis if the disease 

is a substantially contributing cause of the miner’s totally

disabling respiratory or pulmonary impairment. Pneumoconiosis is a "substantially contributing cause" of the miner’s

disability if it: 

(i) Has a material adverse effect on the miner’s respiratory or pulmonary condition; or 

(ii) Materially worsens a totally disabling respiratory or

pulmonary impairment which is caused by a disease or

exposure unrelated to coal mine employment. 

20 C.F.R. § 718.204(c)(1) (2003). If the presumption at § 718.304

does not apply, a claimant may establish the existence of a totally disabling respiratory or pulmonary impairment by means of

(1) pulmonary function studies; (2) arterial blood gas studies;

(3) evidence of cor pulmonale; or (4) medical reports. See 20 C.F.R.

§ 718.204(b) (2003). Such evidence, however, only establishes disability "[i]n the absence of contrary probative evidence." Id. Thus, if

evidence of one type tends to establish disability, it must then be

weighed together with all other evidence relevant to the issue of total

disability for a determination as to whether the evidence, as a whole,

establishes a totally disabling respiratory or pulmonary impairment.

See Lane v. Union Carbide Corp., 105 F.3d 166, 171 (4th Cir. 1997);

Walker v. Director, Office of Workers’ Compensation Programs, 927

F.2d 181, 184-85 (4th Cir. 1991). The ALJ determined, and the BRB

affirmed, that the pulmonary function tests and arterial blood gas

studies did not establish the existence of a respiratory disability, and

the record in this case does not contain any evidence of cor pulmonale. Therefore, Cook must demonstrate that he is totally disabled by

pneumoconiosis through medical opinion evidence. 

Initially, we note, as the ALJ recognized, the objective testing did

not yield results that indicated the presence of a disabling respiratory

4 WESTMORELAND COAL CO. v. COOK
condition. In fact, the pulmonary function and arterial blood gas tests

in the record yielded measures of Cook’s respiratory capability significantly above the levels established by the regulations as indicating

total disability. Nevertheless, the ALJ concluded that the opinions of

Doctors Rasmussen, Diaz, and Aguilar that Cook was totally disabled

by puemoconiosis outweighed the contrary opinions of Doctors Zaldivar, Fino, and Hippensteel. 

In addressing total disability, the ALJ stated: 

The laboratory studies were non-qualifying, which lends

support to the physicians who conclude no total disability is

present. In contrast, however, the reports which conclude

Claimant is totally disabled are based on other tests, including exercise stress tests as well as Dr. Diaz’s status as

Claimant’s treating physician. In this capacity, he had the

unique opportunity to examine Claimant on multiple occasions. In addition, the physicians who concluded Claimant

is totally disabled also agreed pneumoconiosis was present.

That finding was firmly supported by Dr. Walker’s surgical

examination of the actual lungs, and, thus, their correct conclusion regarding the presence of pneumoconiosis lends

support to their conclusions regarding the miner’s pulmonary capacity. 

We find this analysis flawed in three significant respects. First, the

record contains no evidence of the "other" tests mentioned by the ALJ

as supporting the opinions of Doctors Rasmussen, Diaz, and Aguilar.

Rather, the ALJ interpreted Dr. Rasmussen’s discussion of the exercise portion of the arterial blood gas tests as indicating that another

type of test was performed. This is factually incorrect, as the blood

gas tests uniformly yielded results that did not establish the existence

of respiratory or pulmonary disability. Second, the ALJ’s deference

to the opinion of Dr. Diaz based upon his status as Cook’s treating

physician is unwarranted. Our review of Dr. Diaz’s reports reveal that

they are not supported by objective reasoning or analysis, but merely

offer conclusory statements of his opinions and therefore do not constitute reasoned medical opinions. We have previously cautioned

against such unwarranted deference to a treating physician’s opinion.

See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir.

WESTMORELAND COAL CO. v. COOK 5
1997). Third, the ALJ’s conclusion that because the doctors were correct in diagnosing pneumoconiosis, they must also be correct in opining that Cook is totally disabled, reflects a misunderstanding of the

distinct inquiries into the existence of the disease and whether the disease results in total respiratory disability that are required in adjudicating black lung cases. 

In addition to Dr. Diaz, the ALJ also relied on Dr. Aguilar, who

examined Cook in May 1986. Dr. Aguilar diagnosed pneumoconiosis,

pulmonary fibrosis and emphysema, atelectasis of the lower right

lung, and osteoarthritis of the spine and left shoulder. He opined that

Cook would be restricted to "sedentary or at least no more than very

light physical work." Dr. Aguilar conducted pulmonary function tests,

which did not yield values indicating respiratory disability. He also

noted that 

I reviewed the pulmonary function tests performed by Dr.

Rasmussen in 1974 which showed minimal obstructive ventilatory insufficiency with an estimated loss of functional

capacity between 50 and 60%. I expect that that loss may

have increased by this time, although the spirometry

obtained on May 14, 1986 does not bear this out. 

We conclude that the ALJ erred in finding that this opinion demonstrated that Cook was totally disabled by pneumoconiosis. Although

Dr. Aguilar acknowledged that he had reviewed past reports and that

he expected Cook’s pulmonary capacity to be diminished, Dr. Aguilar

failed to explain how, given the objective testing results that indicated

only mild obstruction, he concluded that Cook was restricted to light

sedentary work. Moreover, Dr. Aguilar’s report does not adequately

distinguish the relative contributions of the diagnosed respiratory conditions and Cook’s osteoarthritis to his overall condition. 

The last doctor on which the ALJ relied in reaching the total disability determination, Dr. Rasmussen, examined Cook in 1974, 1979,

and again in 1986. On April 12, 1974, Dr. Rasmussen conducted pulmonary function and arterial blood gas tests on Cook, and reported:

This patient exhibited minimal ventilatory insufficiency,

moderate impairment in oxygen transfer, and an abnormal

ventilatory response with exercise. 

6 WESTMORELAND COAL CO. v. COOK
This patient would appear to be incapable of performing

steady work beyond strictly light work levels. A numerical

estimate of the overall loss of functional capacity in this

case would be placed in the neighborhood of 50-60%. 

On May 4, 1979, Dr. Rasmussen again conducted pulmonary function and arterial blood gas tests on Cook. Dr. Rasmussen reported 

This patient exhibited minimal ventilatory insufficiency,

moderate impairment in oxygen transfer, an abnormal ventilatory response with exercise, and an abnormal cardiovascular response with exercise. 

This patient would appear to be incapable of performing

steady work beyond strictly light work levels. A numerical

estimate of the overall loss of functional capacity in this

case would be placed in the neighborhood of 65%. 

Finally, on May 27, 1986, Dr. Rasmussen examined Cook, and

again conducted pulmonary function and arterial blood gas tests. In

the block labeled "Medical Assessment" on the examination report

form, Dr. Rasmussen stated "[t]his patient has moderate impairment

in respiratory functional capacity." He concluded that "[t]hese studies

indicate moderate impairment in respiratory functional capacity as

reflected by the obstructive ventilatory insufficiency and the impairment in gas exchange at rest and during exercise." Notably, Dr. Rasmussen did not estimate the amount of reduction in Cook’s functional

capacity in this last report. 

We conclude that the ALJ erred in giving Dr. Rasmussen’s opinions probative weight on the question of that disability. First, none of

Dr. Rasmussen’s reports affirmatively state that Cook is totally disabled from a respiratory standpoint. Further, contrary to Dr. Rasmussen’s opinions in 1974 and 1979 that Cook had lost the majority of

his functional capacity and was restricted to only light work, Cook in

fact continued to perform very demanding physical labor in the mines

until he retired in 1986. Finally, Dr. Rasmussen also failed to explain

his conclusion that Cook was limited to light work given the objective

testing that demonstrated the absence of any respiratory disability. 

WESTMORELAND COAL CO. v. COOK 7
With respect to the total disability inquiry, the ALJ’s reasoning was

based upon factual inaccuracies that resulted from an improper evaluation of the medical opinions such that "no ‘reasonable mind’ could

have interpreted and credited the [medical opinions] as the ALJ did."

See Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 764 (4th Cir.

1999). Because there remains no evidence upon which to base a finding of entitlement to benefits, we reverse the award of benefits. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process. 

REVERSED

8 WESTMORELAND COAL CO. v. COOK