UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1662

UNITED STATES STEEL MINING COMPANY, LLC,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS; MARVELLA K. COOPER, widow of Forest

P. Cooper,

Respondents.

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

(05-0825-BLA)

Argued: September 27, 2007 Decided: November 2, 2007

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and

Samuel G. WILSON, United States District Judge for the Western

District of Virginia, sitting by designation.

Petition for review granted; order vacated by unpublished per

curiam opinion.

Howard Gerald Salisbury, Jr., KAY, CASTO & CHANEY, P.L.L.C.,

Charleston, West Virginia, for Petitioner. James Morrison

Haviland, PYLES, HAVILAND, TURNER & SMITH, L.L.P., Charleston, West

Virginia, for Respondents. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

United States Steel Mining Co. (“U.S. Steel”) petitions for

review of the Benefits Review Board’s (“BRB”) order affirming the

administrative law judge’s (“ALJ”) award of survivor’s black lung

benefits to Marvella K. Cooper, widow of Forest P. Cooper. Because

we conclude that the ALJ’s decision is not supported by substantial

evidence, we grant the petition and vacate the award of benefits.

I

Forest P. Cooper worked for U.S. Steel as a coal miner for

approximately 25 years. Following his coal mine employment, Mr.

Cooper suffered from simple coal workers’ pneumoconiosis. Mr.

Cooper also smoked between one-half and one pack of cigarettes per

day from 1982 until his death. During the last year of his life,

he was diagnosed with metastatic renal cell carcinoma, which spread

into his lungs and resulted in his death in 2002. 

Following Mr. Cooper’s death, Mrs. Cooper filed an application

for survivor’s black lung benefits pursuant to the Black Lung

Benefits Act, 30 U.S.C. § 901 et seq. In order to obtain

survivor’s benefits, Mrs. Cooper was required to prove that (1) Mr.

Cooper had pneumoconiosis; (2) the pneumoconiosis arose out of coal

mine employment; and (3) Mr. Cooper’s death was due to

pneumoconiosis. 20 C.F.R. § 718.205. An individual’s death is

“due to” pneumoconiosis if the pneumoconiosis substantially
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contributed to and/or hastened his death. See 20 C.F.R. §

205(c)(2), (4), (5). 

The ALJ concluded that Mrs. Cooper had satisfied her burden of

proof on the existence of pneumoconiosis and that Mr. Cooper’s

pneumoconiosis arose out of his coal mine employment. U.S. Steel

does not challenge these findings on appeal. However, U.S. Steel

does challenge the ALJ’s conclusion that pneumoconiosis

substantially contributed to or hastened Mr. Cooper’s death. 

II

We review decisions of the BRB to determine whether the BRB

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

evidence and is in accordance with law. Consolidation Coal Co. v.

Held, 314 F.3d 184, 186 (4th Cir. 2002). In making this

determination, we undertake an independent review of the record to

decide whether the ALJ’s findings are supported by substantial

evidence. 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. Lane v. Union Carbide Corp., 105 F.3d 166,

170 (4th Cir. 1997) (internal quotation and citation omitted). 

Subject to the substantial evidence requirement, an ALJ has

the sole authority to make credibility determinations and resolve

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

quotation and citation omitted). However, an ALJ must perform the

gate-keeping function of qualifying evidence as “reliable,

probative, and substantial” before relying upon it to grant or deny

a claim. United States Steel Mining Co. v. Dir., Office of

Workers’ Comp. Programs, 187 F.3d 384, 389 (4th Cir. 1999). An ALJ

must evaluate the quality of medical opinions by considering “the

qualifications of the experts, the opinions’ reasoning, their

reliance on objectively determinable symptoms and established

science, their detail of analysis, and their freedom from

irrelevant distractions and prejudices.” Underwood v. Elkay

Mining, Inc., 105 F.3d 946, 951 (4th Cir. 1997).

III

U.S. Steel argues that the ALJ’s conclusion that Mr. Cooper’s

death was due to pneumoconiosis is not supported by substantial

evidence. In reaching his conclusion, the ALJ relied on the

“Reasoned Medical Opinion” of Dr. Ward, who is a Doctor of

Osteopathy and Family Practitioner, and who was Mr. Cooper’s

primary treating physician from 1993 until his death. In his

opinion, Dr. Ward stated:

I had listed the cause of death [on Mr. Cooper’s death

certificate] as metastatic renal cell carcinoma. I had

also listed coal worker’s pneumoconiosis as a

contributing cause to his death. I based that on the

clinical course of his illness after his tumor was

diagnosed in March of 2002. Following the diagnosis of
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the tumor, the patient experienced a rapid downhill

course. During his last days, Mr. Cooper suffered from

severe respiratory symptoms including severe dyspnea and

respiratory distress in May of 2002. He was hospitalized

for these symptoms. At that time, he was started on

continuous oxygen therapy. During the last few days of

his life, Mr. Cooper was treated by me in a Hospice

setting. Throughout his last days, he suffered from

severe respiratory distress and severe dyspnea. It is my

opinion that the terminal event in his illness was

respiratory failure secondary to severe lung disease.

This lung disease at his death was largely due to tumors

replacing his lung, but I feel that his chronic longstanding lung disease caused by coal worker’s

pneumoconiosis was a contributing factor to his death.

In conclusion, I feel that it is entirely reasonable to

state that Mr. Cooper’s coal worker’s pneumoconiosis

contributed materially to his death, shortened his life,

and hastened the process of his demise.

J.A. 261. 

The ALJ considered and rejected the contrary report of Dr.

Bush, a board-certified pathologist. After examining Mr. Cooper’s

autopsy report and other medical records, Dr. Bush opined: 

[Mr. Cooper’s death] resulted from renal cell carcinoma

widely spread by direct extension into the liver and

surrounding renal tissues, lymphatic invasion of lymph

nodes and hematogenous spread to lungs and possibly other

organs. This extent of malignant disease would have

ended in death at the same time and in the same manner if

the lungs were totally free of coal mine dust and were

perfectly normal. I disagree with the opinion of Dr.

Ward who treated Mr. Cooper in the last decade of life.

Mr. Cooper reportedly had chronic lung disease but this

was attributable to a significant cigarette smoking

history, under-reported as one-half pack per day by Dr.

Ward. Other records show one pack per day. The fact

that smoking continued even when death was imminent

suggests a serious smoking habit resulting in emphysema

observed at autopsy and responsible for symptoms prior to

metastatic carcinoma. The abnormal chest x-rays

attributed to coal mine dust exposure early in the

medical history are proven not significant at autopsy.

Mr. Cooper had severe pulmonary symptoms in the weeks and
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months prior to death as a result of the massive invasion

of the lungs by carcinoma producing hemoptysis, abnormal

chest x-rays, and respiratory insufficiency. The limited

extent of the coal mine dust disease at autopsy cannot be

considered causally related to death with any degree of

reasonable medical certainty.

Id. at 262. 

The ALJ also considered the testimony of Dr. Walker, chairman

of the West Virginia Occupational Pneumoconiosis Board. Dr. Walker

testified that Mr. Cooper’s pneumoconiosis did not contribute to

his death in any way:

I think [Dr. Ward is] not making a reasonable evaluation

of the medical evidence. . . . when an individual has a

carcinoma that originated in another part of the body

with multiple metastatic lesions with the chest, even to

the heart and to the chest wall, that patient is dying of

cancer of the primary tumor, which was a carcinoma of the

kidney. To carry Dr. Ward’s opinion, any individual

having any diagnosis of occupational pneumoconiosis and

he died of any other cause, it would be a material

contributing factor. Dr. Ward’s opinion in this

particular case is not consistent with the medical facts,

and I don’t think it’s consistent with the practice of

the medical community today. I don’t think you can

really find anyone who is doing this type of work that

would accept Dr. Ward’s opinion. I think he’s just

totally, totally wrong.

Id. at 263. 

Although he acknowledged that Drs. Bush and Walker had

superior qualifications, the ALJ nonetheless credited the opinion

of Dr. Ward. The ALJ emphasized that Dr. Ward was Mr. Cooper’s

treating physician and that Mr. Cooper had experienced respiratory

problems during life, concluding that Dr. Ward’s opinion was “most

consistent with Mr. Cooper’s history and the medical data in
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evidence.” Id. at 265. We disagree with the ALJ’s conclusion.

The fact that Mr. Cooper worked in coal mines and suffered from

respiratory problems during life does not support the conclusion

that pneumoconiosis contributed to his death. 

The only evidence in the record linking Mr. Cooper’s

pneumoconiosis to his death is the written opinion of Dr. Ward. We

conclude that this opinion is not substantial evidence on which the

ALJ was permitted to rely. Dr. Ward’s opinion is not a reasoned

medical judgment, but consists only of conclusory statements with

no explanation of the reasoning that led to the conclusion.

Indeed, the only support offered for Dr. Ward’s conclusion is his

statement that Mr. Cooper suffered respiratory problems in the days

leading to his death. However, there is no dispute that Mr. Cooper

suffered from renal cancer that spread aggressively into his lungs

at the end of his life. Dr. Ward offers no explanation as to why

he concluded that pneumoconiosis, rather than the cancer which was

overtaking Mr. Cooper’s lungs, was the cause of these breathing

difficulties. 

In the absence of any explanation for Dr. Ward’s belief that

pneumoconiosis, rather than cancer, was responsible for Mr.

Cooper’s end-of-life respiratory problems, Dr. Ward’s opinion does

nothing more than state a conclusion. Accordingly, the ALJ

improperly relied on Dr. Ward’s opinion in awarding benefits.

Because the ALJ’s decision is not supported by substantial
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evidence, we grant the petition for review and vacate the award of

benefits. 

 PETITION FOR REVIEW GRANTED;

 ORDER VACATED