1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2003 FED App . 0261P (6th C ir.) File Name: 03a02 61p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
E ASTOVER M INI

NG C O ., Petitione r,

v.

D OROTHY S. W IL LI AMS and D IRE CTOR , O FFI CE OF W ORKERS ’ C OMPENSATI ON P ROGRAMS , U

NITED S TATES D EPART MENT OF L ABOR ,

Responde nts. X - - - -
> , - - - - - - - N No. 01-4064

On Petition

for Revie w from an

Order o f the Be

nefits Review Board, United States Department of Labor.

No. 00-0362 BLA. Submitted: July 16, 2003 Decided and Filed: July 31, 2003

Befor e: KEITH, SUHRHEINR ICH, and CL

AY, Circu

it Judges. 2 Eastover Mining Co. v

. Will iams et al. No. 01-4064

1 W ith respect to his federa l black lung benefit s, an ALJ found the exist ence of pneum ocon iosis established bec ause con flicts i n the record among quali fied phy sici ans creat ed “true do ubt” th at the A LJ re solve d in

_________________ COUNSEL

ON BRIE F: Mark E. So lomons, L aura Me tcoff Kl aus, GRE ENBE RG & TRAURIG, Washington, D.C., for Pe t itioner. Fred M. Busroe, Jr., CARTER & BUSROE, Harlan, Kentuck

y, f or Respon

dents.

_________________ OPINION

_________________ CLA Y, C ircuit Judge. Petitioner Eastover Mining Co. appeals an order issued by

the Benefits Review

Board of the United States Department of Labor, f ind in g Respondent Dorothy Sue Williams, widow of

Decede nt Gordon Williams, entitled to an award of benef

it s pursuant to the Black Lung Benef its Act, 30 U.S.C. §§ 901-45. F or the re asons set forth below, we REVERSE the Benefits Review Board.

FACTS

Decedent was b orn on January 13, 1927 and died on July 13, 199 3. According to his death certificate, D ecedent died from a pulmonary

embolism du

e to Chronic Obstructive Pulmonary

Disease (“COPD” ), itself

caused by a

n acute gastrointestinal bleed. Decedent s moked between one pack and one-hal f pack of

cigar ettes da ily f or appro ximate ly

four decades before

quittin g in 1986. De cedent worked as a surface miner

for thirt y- seven y ears, r etiring in1983 when the mine where he worked ceased ope rations. He applied

for and ultimately

received federa l black lu ng bene fits, although sta

te officia ls den ied his claim fo r occupa tional disa

bility benefit s. 1No. 01-4064 Eastover Mining Co. v

. Will iams et al. 3

De ced ent’s favor, b ecau se pn eum oco niosis is a progressive disease, and because the ALJ concl uded that a sin gle d octor’ s opi nion coul d not outweigh a greater number of medical opinions supporting Decedent. The Supr eme Co urt and other c ourts, inc luding this one , have su bseq uently discredi ted the f

act- fin ding meth ods employed in th e 1983 p roceeding. See, e. g

. , Dir., OWCP v. Greenwich Coll ieri es , 512 U.S. 267, 280- 81 (1994) (rejec ting the “tr ue doubt” rule); Nat’l Mining As s’n v . Dep’t of Labor , 292 F.3d 849, 86 3-64 ( D.C. Cir. 2002) (reject ing t he view t

hat latent pneumoconiosis is generally progress ive based on the Department of Lab or’s co ncessio n that late nt pneumoco niosis rarely progresses); Woo dwa rd v. Dir

., OWCP , 991 F. 2d 314, 321 (6th Cir. 1993) (rejecting reli ance on numeric al supe riority as a valid metho d to re solve conflicts in the record).

2 De ced ent first saw W oolu m in 1 979

.
3 A “B-re ade r” has d emo nstrated pro fi cienc y in asses sing and classif ying x-r ays f

or pneumoconiosi s by su ccessf ull y complet ing an exami nati on cond ucted by or o n beh alf of the D epa rtmen t of He alth and Human Services. 20 C.F.R. § 718.202(a)(1)(ii)(E). A board-cert if ied radio logis t ha s received a certif ication i n radiology from either the American Board o f Radiology or the American Osteopathic Association. Id

. at § 718.202(a)(1)(ii)(C). Four of the si x rea ding s per forme d by fullycredenti aled anal yst s inv olved fi lms t aken between 1983 and 1985. T he

rem ainin g two f

ull y- creden ti aled anal yst s re view ed fi lms f rom Jul y of 1993, less than t

wo weeks bef

ore Dece dent died. Th e one fullycredenti aled reader who f ound pneu mo conios is reach ed hi s conc lus ion based on the analysis o f an O ctob er 18 , 198 3 film, a nd he later partly

recan ted his d iagno sis. Other read ers with less experti se analyzed the x-rays wi th confli cting results. Four readers wi th n o for mal expert ise i n radiol ogy what soever
saw pneu moc onio sis in fi lms t aken i n October and November

of 1984, as Decedent’s releva

nt medica

l h ist ory begins in April of 1982, when Dr. Jerry Woolum diag nosed Deced e nt with COPD and acu

te bronchiti s. 2 Woolum has board certifications ingeneral practice a nd surgery . Decedent saw many other phy sicians in

connection with hi s claim for living worker benefit s and thes e doctors ordere d numerou s x-rays. Sixteen different

readers analy

zed these images , and only

one of the six B-readers board-certified in radiolo gy

felt any film showed pneumoconi osis. 3 4 Eastover Mining Co. v

. Will iams et al. No. 01-4064

did a non-b oard -certified B -read er. A board- cert if ied r adiol ogis t (but not

a B-read er) found no pneumoc oniosis based on fil m from August and No vem ber o f 198 3, as d id a B -read er lack ing bo ard c ertification

. Although thi s mudd le o f di ff ere nt cer ti fi cat ion s an d dif fe ren t f il ms unde rstand ably tends to create confu sion, o ne ma tter is com pletely clear: only on e of

th e s ix f ul ly -c re den ti al ed r ea der s f oun d pn eu moc oni os is

. He did so bas ed on a fi lm taken in 1983 and later expressed reservati ons about his opinion. InMarch of 1983, Dr. A. Dahhan examined Dece de nt in connection

with his livi ng min er dis abili ty claim. Alth ough Dahhan believed Decedent suffered f rom a pulmonary or respiratory

impair ment, Dah

han thoug

ht D ecedent’s continued smoking caused the problem because the pattern of impairment

disclo s ed in pulmonary function studies, the absence of x-ray evidenc e o f p neumoconiosis, and the presence of occa sional cr epitati o ns on clinical examination
are all indicia of disability induced by smoking, not coal

dust.

OnOctober 20, 19 84, D r. Robert Penman examined Decede nt. Although Penm an h ad neither B-reader certification

nor board certificatio n in radiology, Penma n diagnosed

Decedent with pneumoconiosis based on Decedent’s x-rays. Penman concluded tha t De ce dent’s suffered pulmonary

impairment

partly from pne umoconios is and partly from

smoking. Penman could not separate thetwo risk factors.

Dr. William Ande

rso n e xamined Decedent on Novemb er

28, 1984. Anderson found no evidence o f pneumoconiosis in Dece dent’s x-ray s. Anderson instead suspected COPD due to smoking. Anderson also diagnosed hypertensive

cardiovascular disease, mi xed psy choneur osis and osteoarthritis.No. 01-4064 Eastover Mining Co. v

. Will iams et al. 5

4 Like many of the physicians discussed herein, Dr. C larke’s first name does not app ear in the Joint Append ix.

5 To assist D eced ent in ob tain ing l iving m iner disa bility ben efits imme diately p rior to h is retirem ent, Woolum wrot e on Jun e 8, 1983 that Decedent suf

fe red f rom c hron ic pep tic ulcer d isease w ith acute

exa cerbation, dive rti cular dis ease of t he col on wi th pe riod i c exacerb ations, hyper tension contro lled wit h med ication , and m anic depression, requi rin g chr onic medica ti on. At a deposi ti on on Augu st 22, 1985, Wo olum dec la red that Decedent ’s x-r ays reve aled evide nce of pne umo con iosis and that it contributed to his COP D. W oolum offered no basis for thi s conc lus ion dur ing the d epo sition or in any of D eced ent’s med ical rec ord s. Dr. Clarke 4 examined Decedent on December 17, 1984. He diagnosed

pneumoconiosis by

x-ray as well a s severe res tr ictive and obstructive lung disease based on pulmonary function studies. Cl arke de clared that pneu

moconiosi s rendered Decedent totally disabled.

Dr. Ballard Wright examined Decedent on March 30, 1985. Wright read one

of Dece dent’s x-r

ay s as p osit ive for pneu moconiosi s and interpreted his pulmonary function studies as showing severe restrictive and obstru ctiv e impairme nt, but concl

uded that s m oking caused Decedent’s poor pulmonary func

tion.

Withrespect to th e Woolum, Decedent’s “treating phy sician,”

pneumoconiosis is me

ntioned on

ly briefly inthe “previous history

” section of his re

port. 5 Pneumoconiosis appears i n Woolum’s me dical re cord twic e more—f irst, in D e cember

of 1986, when Decedent reported anxiety and depression

related to his pursui t of black lung benefits, and
s econd, in January of 1987, when Woolum aga in l iste d pneumoco

niosis in the “previous history” por tion of a me dical report. Thes e are the

only refer ences to pneumoconiosis Woolum recorded.

Over the next eleven year

s between Decedent’s initial visit to Woolum and his eventual death, Woolum treated Decedent 6 Eastover Mining Co. v

. Will iams et al. No. 01-4064

for a cyst, hy pertension, a hernia, acute influenza, peripheral vascular disease, acute bronchitis, pneum onia, a transient ischemic attack, seve r al episod

es of re spirator

y di stress, caroti d artery

disease, acute gastrointestinal bleeding , a urinary tract infection, and

acute septicemia. In July of 1990, Woolum diagno sed end- sta ge COPD. During Decedent’s final hospitalization, Woolum reported massive upper g astrointestinal bleeding, erosive gastritis, and active p epti c ulcer disease. Decedent died despite surgic al intervention inten ded to stop the bl eedin g.
The hospital d

isc har ge papers included these final diagno ses: (1) pulmonary embolism; (2) post-inflammatory pulmonary

fibrosis; (3) emphysema; ( 4) acute upper GI

bleed (ulcer); (5) acute anemia due to severe blood loss; (6) gastritis with hemorrhage; (7) cor pu lmonal e ; and (8) peripheral vascular disease. During his treatment of Dece dent, Woolum
never conducted regular pulmonary functionstudies or blood gas tests, nor did Woolum diagnose pneumoconiosis.

PROCEDURAL HISTORY Respondent

filed for survivor’s benefits on August 2, 1993, two weeks after Decedent’s de ath. On January 24, 1994, after administrative process ing by the Depa

rtment o f L abor (“DOL”), a claims examiner denied Responde nt’ s claim because she f ailed to establish Decedent died from pneumoconiosis. On May 25, 1994, DOL reversed itself and found the evidence sufficient. At Petitioner’s reque st, t he claim procee ded to an Adm inis trati ve Law Ju dge (“ALJ”) for trial.

OnMay 8, 1995, the ALJ issued a decision and order denying Respondent’s claim. ALJ Charles P. Rippey consi dered

a February

24, 1994 report by Woolum that claimed: [Decede nt’s] pulmonary disease pr ogre sse d during the years I ca red for him and the last several y

ears of his lifeNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 7

6 W oolum hypothesized that, although the pulmonary embolus direc tly cau se d the miner’s de ath, pneum ocon iosis hastened his dem ise because the mine r’s “l ack of oxyg en [a nd] hi s re tai ned car bon diox ide all played an effect on all parts of his body.” (J.A. at 277.) he w as in respiratory

failure . . . most of the time. H e was ho spitalized several times requiring ventilatory support to keep him alive. The terminal event was likely
a pulmonar

y e mbolus. Unfortu

natel y, an autopsy

was notgranted by

the family. I

have no problem stating that this gentleman was disabled secondary to his lung disease of which

pneumoco

niosis, in my

mi nd, w as certainly a

contributing factor. (J.A. at 72.) Befor

e trial, however , ALJ Rip

pey met with bo th sides and informed Respondent’s counsel that this letter alone did not constitute sufficient proof.

At trial, Respondent introduced a new letter from Woolum dated Mar ch 10, 1995. This time, Woolum concluded, “within a reasonable degree

of m edic al probability,” that pne umo coniosis“hastened [Decedent’s] death.” 6 ( Id .) A lthou gh ALJ Rippey gave “extra weight to the opinion of Dr. Woolum bec ause he was the tre ating ph ysi cian, ” ALJ Rippey based his decision to deny benef its on severa

l factors. First, the March 10, 1995 opinion co nflic ted with hi s February 24, 1994 l etter. Second, the March 10, 1995 letter fa il ed to specify “in wha

t matter the pneumoconiosis hastened [Decede nt’s] death.” (

Id .) Judge Rippey asked, rh et or ic al ly, whether “it led to his development of an embolus earlier than it would other wis e h av e d ev el ope d? Did the pneumoconi osis
cause death earlier than would otherwise have occurred once the embolus developed?” ( Id .) Third, ALJ Rippey

noted that the March

10, 1 995 lette

r stated only

that Woolum c ould conclud e wi th a r ea so na bl e d eg re e o f m ed ic al “p ro ba bi li ty” that the pneumoconiosis hastened the death, as oppose d to the usual langu age , “with a reasonable degre e of medical certainty.”

( Id .) 8 Eastover Mining Co. v

. Will iams et al. No. 01-4064

Fi na ll y, ALJ Ri ppey refus ed “to ign or e the surrounding
c ircums tances.” (

Id .) Judge Rippey “infe r[red] that Dr. Wo olum’s March 1 0, 199 5 opi nion was giv en fol lowi ng a dis cussionwith [Respondent’s] counsel, a nd that Dr. Woolu m wanted to say all that he

could to streng then [Respondent’s] case.” (J.A. at 73.)

Petitioner filed a timely appea

l to the Benefits Review Board (“BRB”), wh ich vacated ALJ Rippey ’s decision on April 24, 1996. The BRB rejected ALJ Rippey’ s characterization

of Woolum’s second opinion as a s hift or departure fromhis initial conclusion; rather, the BRB termed Woolum’s new opini on a “cla rificat ion” of hi s e arl ier conclusion. (J.A. at 67.) The Board also refused to find that the timing of Woolum ’s se cond letter made Woolum’s statemen ts less reliable. The BRB thus rema nded the c ase to a new ALJ for further c onsideration.

The newALJ, Cl ement J. Kic huk, ga ve little weight to Petitioner’s experts. Instead, holding for Res pon den t, ALJ Kichuk a rgued that: [i]t is apparent from

the voluminous medical reports that Dr. Woolum had [D eceden t] under c lose and c onsta n t treatment over a period of fourteen

years w hichprovided him with an outstanding oppo rtun ity to determine the exact nature and cause of his patient’s pulmon ar y a nd respiratory

impairment with reliance upon repeated tests, evaluat ions, and observations of resp onse to proscribed
me di ci ne s a nd th er ap y. (J.A. at 61.) This time, Petiti oner appealed t o the BRB. Althoug h the B RB initial ly a ffirmed ALJ Kic huk, the B RB remanded the case to ALJ Kichuk following Petitioner’s motion for reconsideration. Specifically, the BRB found that ALJ Kichuk based his decision on the “true do ubt” t est thatNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 9

7 As noted , under the now-discredit ed “true doubt” test, a claimant

cou ld est abli sh t

he exi ste nce of

pneumoco niosis i f confli cts in t he record among quali fiedphysicians cr eated “true doubt” about the presence of the disea se.

8 Dahhan pr ev i ou s l y ex am i ne d D ec ed en t i n Ma rch o f 198 3, in

connec ti on with his liv in g mi ner cl aim. Al though Dahhan bel ieved Decedent suf

fered from a pulmonary or respiratory impairmen t, Dahhan thought Decedent ’s continued s mokin g caus ed th e prob lem b ecause the pattern of

impairment disclosed in pul monary function st udies, the absence of x- ray evi dence of pneumoconi osis, an d th e pres ence of occasionalcrepitati ons on clinic al exam ination a ll indicate d disa bility induc ed b y smo king, no t coal d ust. the Supreme Court found impermissible in Director

, OWCP v. Greenwich Collieries , 512 U.S. 267, 280-81 (1994). 7

Onthe second remand, Petitioner introduced evidence that
ra diologis ts who examined Decedent’s x-ray s found n o evidence of pneumoconiosis. Importantly, Petitioner offered the analysis of Dr

. A. Dahhan, a phy sician board-certified in internal medicine and pulmonary medicine wh o w as one of the many doctors t o phy sically

examine De cedent i

n the ear ly 1980s. Dahhan stated

that Decedent died dueto an upper GI bleed, po ss ib ly caused by the steroids he took for broncho spas ms. 8 After reviewing all x-ray s and medical records, Dahhan concluded:

There is insufficient obj ective evidence to justify the diagno sis of coal worker’ s pneumoc oniosis

. . . . [H]is death was cont ributed to great ly by h is advanc ed chron

ic obstruct ive lung disease with no eviden

ce that h is death
was contribu

ted to or hast en ed by his exposure to coal dust or coal worker’s pneumoconiosis. (J.A. at 280.) Dr. Dale

Sarge nt, board certified in pulmonary diseases and critical care, rendere d an opi nion s imilar to Dahhan’ s. Sargent noted

that Decedent’s blood gases showed
sever e h ypoxemic hy

percapnic respiratory

failure on a 10 Eastover Mining Co. v

. Will iams et al. No. 01-4064

chronic bas is—a f

indi ng sugges ting C OPD du e to sm okin g, not pneumo coniosis. Accord ing to Sar gent:

Inmy opinion , with a reasonable degree of medical certaint y, [ Decedent] had severe chronic obstructive pulmonary

disease seconda ry to ciga rettesmok ing. This is the diagnosis put forth by Dr. Woolum. In fact, coal worker’s pneumoconiosis is not mentione d in Dr. Wo olum’s diagnostic impressions either at the time o f admission or time of

dischar ge. Chr onic obst ruct ive pulmonary

disease and

pulmonary

emphysema ca

n cause severe lung disease without character istic chest x-ray changes of pneumoconiosis. Therefor e, I believe the
cause of this miner’s respiratory impairment was pulmonary

emphysema due

to ciga rettesmok ing, and not due to coal worker’s pneumoconiosis. (J.A

. at 284.) Sargent also stressed that even assum in g Decedent had pneumoconiosis, it did not ca us e his death. Sargent wrote: Very clearly, this man died of an ac ute eve nt (gastrointestinal bleeding) during the time he wa s hospitalized in J uly 1993. There is no post mortem examination, so the ca

use of the

death is c onjectur

al. Nevertheless, this man had b ee n bleedin g recu rrently during his hospitaliza

tion and it i s certa

inly possible that he died from acute gastrointestinal bleeding. Dr. Woolum thought that another possibility for c ause of death was pulmonary embolism. None of the phy sicians caring fo r the patient at this point indicated that [Decedent] died due to either his lungdisease or to coal worker’s pneumoconiosis. Therefore, the caus e of dea th is either gastrointestinal bleeding or pulmonary embolism, neither of which have been show n t o be caused by pneumocon

iosis o rchronic obstructive pulmonary disease.No. 01-4064 Eastover Mining Co. v

. Will iams et al. 11

(J.A. at 2 85. ) I

n hi s de cis ion , AL

J Kichuk d isregarded the conflictingx-ray an al yses, observing that the “evidence of record does not indica

te that [Respondent] has established the presence of complicated coal worker s’ p neumoconiosis by chest x-ray.”

(J.A. at 31.) Judge Kichuk also noted the lack of any biop sy or

autopsy evidence

to support a diagnosis of pneumoconiosis.

Nevertheless, ALJ Kichuk found Respondent’s position
more com pel li ng. ALJ Kichuk said that Woolum’s opinion: [wa s the] most re asoned a nd persuasive . . . be cause i t inclu des the most comprehen sive ana lys is of all the element s of the miner’s occupational and medical his to ry. Moreover, Dr. Woolum personally treated th e miner and was his principal caregiver f or fourteen ( 14) ye ars, from 1979 , until [Dec edent] pa sse d away in July of 1993. His treatment of [Deced ent] o ver the y ears is fully and painstakingly

documented

in the record, which includes , but is not lim ited to , thirteen (13) hospitalizations (at least

five for acute respiratory

failure) and each time conducting chest x-ray s, EKGs, an d arteri al blood gas studies. From January of 1990, D r

. Woolum also diagnosed

[Decede nt] with cor pulmo nale and end-stage chronic obstructive pulmonar y disease.

I accord greatest weig

ht to Dr. Woolum’s opinion , no t simply because he was the miner’s treating physician for many years, but be cause he based his medical op in ion uponnumerous

objectiv e st

udies obtained during the miner’s multiple ho spital a dmi ssions for acute respiratory

distress. In sum, D r. Woolum spec ifically id entif ied the studies and observations upon which he relied and the conclusions he reached are consistent

with and supported by the under

lying objective evidence of record. 12 Eastover Mining Co. v

. Will iams et al. No. 01-4064

9 Te chnica lly, this Court i s reviewing t he BRB ’s decisi on a f

firming the ALJ, no t the ALJ’s dec ision itself. Thu s, we do not consi der wheth er the BRB’s deci sion

was s uppor t ed by subst anti al evi dence, but whether the BR B c orre ctly con clude d that su bstan tial evide nce su ppo rted th e ALJ ’s decisio n. See , e.g., Zim me rma n v. D ir., OW CP

, 871 F.2d 564, 567 (6th Cir. 19 89) ; Bizz arri v. Cons olida ti on Coal Co. , 775 F. 2d 751, 753 (6th Cir. 1985). Th e stand ards o f review are the same

. Cro ss M oun tain Co al, Inc. v. Wa rd , 93 F. 3d 211, 215 (6th Cir. 1996) (“ The st andards of review for

the BRB and this court are t he same.”) (citi ng We lch v. B ene fits Review Bd. , 808 F. 2d 443, 445 (6th Cir.1986) (per curiam)). This Court reviews the legal issues de novo but affords deference t o relevant fact ual findings. (J.A. at 35.) ALJ Kichuk added that he did not believe Woolum’s opinion wa s a

“gratuity extended to a patient

by a sympathetic trea

ting physician.”

( Id .)

Whenthe BRB affirmed, Petitioner timely appealed to this Court.

DISCUSSION

Thi s appeal presents issues of administrative practice and proc edure that are mixed questions of law and fact . W e review questions of

law de novo

. Peabody Coal Co. v. Greer , 62 F .3d 801, 804 (6th Cir. 1995) (“This Court has plen ary authority to review the Board's leg al conclusions.”) (citing Gibas v. Saginaw Mining Co., 748 F.2d 1 112, 1119 ( 6th Cir.1984)). To the extent we must review factual conclusions
as well, we do so with much g reater defere nce. 33 U .S.C. § 921(b)(3). This Court w ill affirm an ALJ’s factua l find ings when substantia

l evidenc e support s those co nclusions

. Consolidation Coal

Co. v. W orrell , 27 F.3d 227, 230-31 (6 th Cir. 199 4). Where , howeve r, an AL

J has imprope

rly ch aracterized

the evidence or failed to account of re levan t record material, deference is inappropriate and rema nd is required. 9 Dir., OW

CP v. Rowe , 710 F.3d

251, 255 ( 6th

Cir. 1983). From the outse t, we note th at claima

nts have th e burden of proof in black l ung benefit proc eeding s. The Black Lung Benefits Act, 30 U.S.C. §§ 901-62 (199 4), cre ates anNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 13

10 In its entirety, t

he app licable regulation read s: (c) For the pur

pose of adjudicat ing s urviv ors' clai ms fi led on or afte r Janu ary 1, 1 982 , death will be co nside red to be d ue to pne umo con iosis if any o f the follow ing criteria is met:
(1) W here competent

medical e vidence es tabli shes t hat pneumocon iosi s was the caus e of t he mi ner' s deat

h, or
(2) W here p neum oco niosis was a substanti ally contr ibuting

cause or fac to r leading to t he miner's death or where the death was c ause d by compl ications of pne umoconi osis , or (3) W here th e pre sump tion set fo rth at § 7 18.3 04 is applicabl e. (4) Ho weve r, survivo rs are n ot eligib le for benefits where the miner' s death w as cause d by a traum atic injury or t he princi pal cause of

death was a medical conditi on not rel ated to pneum ocon iosis, unless the evi dence est ablis hes th at pne umo con iosis was a su bsta nti al ly cont ribu ti ng cau se of death.
(5) Pne umo con iosis is a " substa ntially con tributi ng cause" of a miner' s death if it hast ens the miner' s death.

20 C.F. R. § 718.205. The presump tions in § 718.30 4 apply only when a claimant can of

fer cert ain medica l ev idenc e, an d Responden t does not claim that any of

the pre sump ti ons a pplie s in this case

. See 20 C. F.R. § 71 8.30 4. adversarialadministr

ative pr ocedure desi gned

to require mining compani es to pay those miners (or the survivors of those minors) w

ho legit imately suffer from a class of different coal dust-re lated pul

monary injuries c ommo nly categorized
as pneumoconiosis. Pet itioner is eligible for bene fits i f pneumoco

niosis caused or “hasten[e]d the miner’s death.” 10 20 C.F.R. § 718.205 (c)(5) . Co ngress define d “pneumoc oniosis”

as a “ch ronic dust disease of the lung and its sequela e, in cludi ng r espiratory a nd pulmonar y impairme nts, arising out of coal mine employment.” 30 U.S.C. § 902(b) (1994). 14 Eastover Mining Co. v

. Will iams et al. No. 01-4064

Department

of Lab or (D OL) reg

ulations help further describe “p ne um oc on io si s” by p roviding an illustr ative listing of disea ses that pneumocon iosis inclu

des:

For the pur pose of the Act, pneumoconi osis mean s a c hroni c dust disease of the lung and its sequelae, including respirat ory

and pulmonary

impairme

nts, ari sin g out of coal mine employment. This def inition includes , but is not l im ited to, c oal work ers’ pn eumo coniosis, anthrac osilicosis , anthra cosis , anthrosi licosis, massive pulmonary fibrosis, progressive massive fibrosis, silicosis, or silicotuber c ulosis, arising out of coal mine employment.

20 C.F.R. § 718.201 (1997). As this regulation makes clear, legal “pneumoc oniosis”

en compasses medical conditions other th an cli nical pneumoconiosis. See, e.g., Nance v. Benefits Review Bd. , 861 F.2d 68, 71 (4th Cir. 1988). Clinical
or medi cal pne umoconiosis is a lung disease caused by fibro tic reaction of the lu ng tissue to inhale d dust th at i s gener ally visible on

chest x-ra

y f il ms. See, e.g., Usery v. Turne r-Elkhor n Mining Co. , 428 U.S. 1, 6-7 (1976). Leg al pneumoconiosis includes all lung disease s me eting the regulatory

definition of any

lung disease that

is signif icantly related to, or agg ravate d by , exposure

to coal du st. See, e.g., Hobbs v. Clich

field Coal Co. , 917 F.2d 790, 791 (4th Cir. 1990).

Un der DOL regula tion s, a cl aiman t may esta blis h lega l pneumoconi osis by any

of four different methods of proof: (1) x-ray evidence ; (2) autopsy or biopsy evidence; (3) evidenc e of comp licated medical pneum oconiosis or progressive massive f

ibrosis; or (4) reasoned and documented medical opinions. 20 C.F.R. § 718.202(a)(1)-(4). As noted, the claimant bears the burden of proof. Greenwich Collieries , 512 U.S. at 281 . The pre sence of evidenc e favor

able to the claimant or even a tie in the proof will

notsuffice to meet that burden. Id

.No. 01-4064 Eastover Mining Co. v

. Will iams et al. 15

Despite a certain degree of

lingering confusion among the courtsof appea

ls, it has become overw

helming ly

evident that the testimony of the “trea ting physician”

receives no additional weight

. Sometimes termed the “treating physician rule ,” claimant s have ar gued that the tre ating ph ysi cia n’ s analy sis should receive greater sig nificance in ALJ decisions (if not dispositive weight) relative to analyses performed by other experts.

Inaddition to

the black lung c ontext, the “treating physician rule” pl ays a

role in Soc ial Secur

ity p roceed ings pursuant to regu lations that stipulate that the Commissioner of Soc ia l Security must give spe cial weight to the claimant’s treating physician when determining whether a claimant de serves disability benefits. See20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (2002). Courts have also applied the “treating physician rule” in disability determinations unde r emp loyee benefit plan s covere d by the Employ

ee Retir ement I ncome Sec urity Act of 1974 (ERISA), 29 U.S.C. §§ 1001-53. See, e.g., Darland v. Fortis Benefits Ins. Co. , 317 F.3d 516, 533 (6th Cir. 2003), overruled by Black &Decker Disability Plan

v. Nord, 123 S .Ct. 1965 ( 2003) (Gins burg, J.) (critic izing, in
anopinion by a unanimous Court, the usefulness of granting deference to the opinion of a treating physician).

In Black &Decker Disability Plan v. Nord , 123 S.Ct. a t 196 9 , the Supre

me Court r

ecently revers ed a Ninth

Circuit decision, Nord v. Bla ck & Decke r Disa bility

Plan , 296 F.3d 823, 831 (9th Cir . 2002), that afforded def erence to treati n g physiciansin ERISA-r elated disab ility determinations. Alth ough Black &Decker dealt with ERISA, the unanimous Courtdisapproved of the “treating ph ysi cian rul e” with langua ge that crit

icizes t he principle

itself, r ather than its operation in an ERI SA context. See Black &Decker , 123 S.Ct. at 1971. A s Justice Gis burg explained, ERISA regulations that require a “full and fair”assessme nt of cla ims “do not command pl an administrators to credit the opinions of t reating phy sicians over other evidence relevant to the 16 Eastover Mining Co. v

. Will iams et al. No. 01-4064

11 As note d, Social

Secur ity bene fi t det ermi nati ons ar e gover ned by regulations that req uire de ferenc e to trea ting phys icians, s ee 20 C. F.R. §§ 404 .152 7(d )(2), 4 16.9 27( d)(2 ), while neither ERISA nor Black Lung regulations conta in a similar requ ir e ment. The Black & Decker Court noted that de ferenc e to treating physicians makes m ore sense in t he Social Sec urity context

beca use “[ p]resumpti ons employed by the [Soci al Sec urity] Comm issioner’ s regulati ons grow out of the need to adminis ter
a large b enefits syst em effi cient ly. ” Id. at 19 71 ( quo tation o mitted ). Th is rationa le is inapplicable to the bl ack lung bene fits schem e, which affects dram atically fewer people and whose remaining claimants will decrease natura lly as time p asses. claimant’s med ical condition.” 11 Id . at 1967. The Court explained in detail:

The question w

hether a tr eating phy sician ru

le would increase the accuracy

of disabi lity

determinations under ERISA plans . . . seems to us one the Legislature or superintendingadministrative ag en cy is best positioned to address. As compare d t o consultants retained by the plan, it may

be true t hat trea ting phy sicians, as a rule, have a gre ater opportunity to know and obse rve the patient as an individual. Nor do we question the .

. . concern that physicians repe atedly reta ine d by benefit s plans may have a

n incentive to ma ke a finding of ‘not disabled ’ in orde

r to save their employers

money and to preserve their own co nsul ting arran gements. But the assumption that the opinions of a treating phy sician warrant greater cred

it than the opinions of plan consulta nts may make scant sense when, for example, the relation ship b et ween the claimant and the treating physician has been or short duration, or when a special ist engaged by the plan has expertise the treating physician lacks. And if a cons ultan t engaged by a plan may ha

ve an“incentive” to make a

finding of “not disabled,” so a treatingphysician, in a close c ase, may favor a findingof “di sabled.” Intelligent resolution of the question of whether routine deference to theopinion of a claimant’s treatingphy sicia

n w ould y

ield more accura te disabil ityNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 17

12 Judge Kenne dy s ti ll dis sen tedfr om P eabody Coal v. Groves , explaining that

she s aw “n o reas on why a t reati ng physi cian’ s opini on that

one condition caused or contributed to another should be accepted in the face of exp ert op inions to the co ntr ary, at least where t here i s no logi cal explanati on for doing so offer ed by the A LJ.” 2 77 F .3d a t 837 (Ke nned y, J., dissen ting). determi nat ions, it thus appears, might be aided by
em pirical investig ation of the kind cou rts are i ll- equippe d to conduct.

Id

. at 1971 (internal qu ot ations and citations omitted). The Courtthus notes that treating phy sicians may have strongproclaimant biases and lack the expertise hel d by no n-treating doctors. These critiques of the “treati ng phy sician ru le” appl y with equal force to the notion that treating physiciansshould receive deference

in black lung proceedings.

Infact, th e courts

of appea ls, includ ing thisone, have often recognized that there is no “treating physician

rule” in black lung ca ses, although this

Court’s jurisprudence is somewhat equivoca l. In Tusseyv. Island

Creek Coal Co. , 982 F.2d 1036 (6th Cir. 1 993), this Court wrote that “opinions of treating p hysiciansare ent

itled to g reater weight than those

of non

treatingphysicians.” Id . at 1042. Subsequently, however, we withdrewfrom the l angua ge in Tussey , explaining that Tussey “did not suggest that treating phy sicians should aut

omatical ly be presume d to be cor

rect— we indicated that their opinions should be ‘properly

credited and

weighed.’” 12 Peabody Coal Co. v . Groves , 277 F.3d

829, 834 ( 6th Cir. 200 2) (quoti n g Tussey , 982 F.2d

at 1042). In another case more recent than P e abodyCoal , we unam biguous ly s tated tha

t “ the misconceived

‘treating physician presumption’ doe s not exist .” Wolf

Creek Collieries v. Dir., O WCP , 298 F.3d 511, 521 (6th Cir. 2002) (emphasis added); s ee also Jericol Mining, Inc. v. Napier , 301 F.3d 703, 709 (6th Cir. 2002) (quoting Nat’l Mining Ass’n v. Dep’t of Labor , 292 F.3d

849, 861 (D.C. Cir. 2 002), for the proposition that ‘“[t]he
consensus among courts has been that an agency adjudicator 18 Eastover Mining Co. v

. Will iams et al. No. 01-4064

may give we ight to the treati ng phy si cian’s opinion when doing so makes s ensein light of the evidence and the record, butmay not mecha

nisticall y credit the

treating physician solely because of his re lationship

with the claimant”); Griffith

v. Dir., OW

CP , 49 F.3d 184 , 18 7 (6th Cir. 1995) (citing Tusseyfor the Co

urt’s c onclus ion that “ under the se circumst an ces, the ALJ was not required to give g reater weight to the opinion of the treating phy sician”).

Other circuits have als o rejected the treating phy sicianrule inblack lung litigation. See, e.g., Kennellis Energies, Inc. v. Hallmar k , __ F.3d __, 2003 WL 21464596, at *6 (7th Cir. 2003) (“[A] preference or the treating physician’s opinion .

. . has b een rejected by

this Circuit.”) (citations omitted); Peabody Coal Co. v. M

cCandles s , 25 5 F. 3d 465, 469(7th Cir

. 200 1) (calling a treating phy sician preference “irrational,” in part because “[ t]r eating phy sicians often succumbto the temptation to a ccommoda

te th eir pat ients (and the ir survivors) at the expense of third parties suc h a s insurers, which impl ies attac hing a d iscount rath er than a preference

to their views”); La ngo v. Dir ., OW CP , 14 F.3d 573, 576-77 (3 d Cir . 1 997) (finding treating phy sician’s conclusory

statemen

t that coa

l miner’s pneumoconio s is hastened his death did not supportblack lungbenefits claim). As the Fourth Circuit explained:

Neither this circuit nor the Benefits Review Boa rd ha s ever fashioned

either a requirement or a

presumption that treatingor examini ng physicians'opinions be given great er weig ht than opi

nions of ot

her exper t phy sicians. We have often

stated tha t as a general matter the opinions of treating and examin

ing phy sic i ans deserve especial consideration. We stated, for example, in Hubbard v. Califano , 582 F.2d 3 19, 323 (4 th Ci r.1 978), that "[we] place[ ] great reliance on a claimant' s treating phy sician," and, citi ng Hubbard

, in King v. Califano , 615 F.2d 1018, 1020 (4th Cir.1980), that "[we] place[ ] great reliance on the conclusions of a

claim ant's examini ng physician." In neith er case, however, did we sugg est, much less hold,No. 01-4064 Eastover Mining Co. v

. Will iams et al. 19

that the opinions of treating or ex amini ng physicia ns must be a ccorded greater weight than opinions of other phy sicians. It is, of course, one thing to say that we give great weight to the treat ing or e xami ning p hysician 's opinion; it is quite another to say that as a matter

of law
we give greater weight to such a n opinion than t o opinions by

other physicians. The

ALJ therefore was not requi red to defer to Dr. Soliva's diagnoses or to ac co r d themgreater we i ght than the opinions of the other physicians.

Grizzle v. Pickands Mather &

Co./ChisolmMines , 994 F.2d 1093, 1097-98 (4th Cir. 19 93); see also Island Creek Coal Co. v. Compton , 211 F.3d 203, 212 (4t h C ir. 200 0) ( “An ALJ may not di scre dit a physician’s opinion solely because the physician did not examine the claimant.”). Thus, most c ourts do not afford additional deference to trea ting physicians.

The Department of

Labor rece

ntly promulgated regulations with respect to the rol e treati ng phy sicians should p lay

in black lung benefit determinations, b ut t hese rul es do little
more than e xplai n that sometimes a treating phy sician may “have a thorough understanding of a miner’ s condition,” but in o ther ca ses, AL

Js should not r

ely on the opin

ions o f treatingphysicians. See 20 C.F.R. § 718.104 (d)( 2002). Rejecting“automa

tic acceptance” of the trea ting physician’ s opinion, the DOL intended the rule “ to force a caref

ul and thoro ugh assessment of the treating relationship. ” Regulations Implementing the Federal Coal Mine and Safety Act of 1969, as Amended, 65 F ED

. R EG

. 79,920, 79,932 (Dec. 20, 2000) [hereinafter Implementing Reg ul ations ]. To effectuate this

end, the D OL’s

regula tion state s: (d) Tr eati ng physicia

n. In weighing

the medical evidence of record relevant to whether the miner suffers, or suffered, from pneumoconiosis, whether th e pneumoco

niosis arose out of coalmine employme nt, and whether the mi ne r is, or was, totally disabled by pneumoco

niosis or d ied due to pneumoconiosis, the 20 Eastover Mining Co. v

. Will iams et al. No. 01-4064

13 The regu lat ion di d not become effective unt il December 20, 2000,

so the ALJ did n ot ha ve i ts benef it when h e made hi s d ec is io n. The BRB, however, is sued t

he deci sion

pres ently un der re viewon Janu ary 31, 2001. adjudicationoffi cer

must give consideration to the relation ship between the miner and any treating physician whoser eport is admitted into the record. Sp ec if ic al ly, the adjudication officer shall take int o consideration the following factors in weighing the opinion of the miner's treating phy sician: (1) Nature of

relationship. The opinion of a physician who has treated the miner for respiratory or pulmonary condition s is entitle d to more weight than a physician who has treated the miner for non-respiratory condition s; ( 2) Dur ation of relationship. The length of the treatment relation ship demo nst rates whether the physician has observed the miner l ong enough to obtain a superior understanding of his or her condition; (3) Fr equency

of treatment. The frequency of physician-patient vis its demonstrates whether the physician has obs erved the miner o ften eno ugh to obtain a superior understanding of his or her condition; and (4) E xtent of treatment. The types of testing an d examinations conducted dur ing the treatmen t relation ship demonstrate whethe r th e physician has obtained superior and relevant information concerning the miner's condition. 13No. 01-4064 Eastover Mining Co. v

. Will iams et al. 21

14 Contrast the b lack l ung regul ation to the Social Sec urit y rul e that deals with treating physicians:

Ge nerally, we give more weigh t to o pin ion s f rom your treati ng
source s, s ince t

hese sour ces are l ikel y to be t he medical pro fessiona ls most able t o prov ide a deta iled, longi tudin al picture of your medical impairment(s) and may bri ng a u nique perspective to th e medical evidence tha t ca nnotbe obta ined from the obj ective m edica l findin gs alon e or f rom repor

ts of ind ivi dual examinations, s uch as consultati ve examinations o r brief hosp italization s. If we find th at a tre ati ng source' s opi nion on the is sue( s) of

the nature a nd sev eri ty of your impairm ent(s) is well -su

pporte d by medi cally acc eptabl e cl ini cal and l a boratory diagn ostic techni ques and is not i nconsis tent with the ot her subs tant ial evide nce in yo ur case reco rd, we will giv e i t
con trolling w eight.

20 C.F.R. § 404.152 7(d)(2). This further exempli fies t he relevance of the distinction the Bla ck & DeckerCourt drew bet ween ERISA and Social Sec urity. The Court, i n eff ect, excused t

he tre atin g physi cian rule in t he Social Secur ity cont ext becaus e of the above- quoted regul atory mandate. See Black & Deck e r , 123 S.Ct. at 1971. The black lung situati on, however, is much more like t he ERISA issue bef

ore the Black & Decker Court beca use no regula ti o n mandat es t hat eit her pl an admi nis tra tors or ALJs handli ng black l

ung cases give t

reati ng physi cians deference

. 20 C.F.R. § 718.104(d) (2001). The regulation say s nothing about prioritizing a treating phy sician’s perspective; 14 rather, the reg ulati on exp ectsAL Js to analy ze the nature and duration of the doctor-patie

nt relati onship along with t he frequency and extentof treatment. This is similar to the kind of critical analy sis an ALJ should apply

when consider in g any

expert opinion. The DOL

further expects ALJs to weigh the report of a treating phy sician “against all other relevant evidenc e in the record.” Implementing Regulations , 65 F E D

. R EG

. at 79,934. A simple principle is evident: in black lung litigation, the opinions of treatingphysicians g et the deference they deserve based on their power to p er suade. Cf. Skidmo re v. Swift & Co. , 323 U .S. 1 34, 140 (1944) (affording an administrative agency pronouncement only the

weight it deserved in light of 22 Eastover Mining Co. v

. Will iams et al. No. 01-4064

15 And eventhe ALJ gave th at read er’s opin ion “little or no we ight” because Simmons, the reader:

vacil late s in hi s deposit ion te sti mony as t o whether he beli eves the mine r had pneumocon iosi s. Despit e hi s st atus as a boardcerti fiedradiologist and a B re ader, he w as unabl e to make a fin al determi nati on on the ex ist ence or non- exist ence o f co al workers’ pneumocon io sis (CW P), as evide nced by his testim ony. He first states that h e r ead th e ch es t x -r ay as pos it iv e f or C WP, but the n states tha t his was p rob ably “o verre ading .”
(J.A. a t 32.) “the thoroug

hness evident in its consideration, the validity of its rea s oning, its consistency with ea rlier and later pronounc ements, and

all those factor s which give it powe r to persuade”). For in stanc e, a hi ghly quali fied t reati ng p hysician who has lengthy

experienc e with a miner may de serve tremendous defere

nce, whe reas a t r e ating physicia

n without the right pulmonary

certifications should have hi s opi nions appropr iately discounted. The case law and applica ble regulatory

scheme make cle ar that A LJs must e

valuate treating phy sicians just as they consider othe r experts.
As expl a ined, Respo ndent may prove h er case throu gh autop sy or biopsy evidence , x-ray evidence , evidence o f complicated

medical p neumocon

iosis or progressivemassive fibr osis , or reasoned and documented medical opinions. 20 C.F.R. § 718.202(a)(1)-(4). Since Respondent offer ed no
au topsy o r biopsy

evidenc e, we ma

y move directly t

o Decede nt’s x-ray s. Writing that the “evidence of record does not indicate that [Responde

nt] has est ab lished the presence of complicated coal worker s’ pneumo coniosisby ch est x- ray, ” th e ALJ
never re l ied on x-ra

y e vidence . (J.A. at 31 .) This is unsurprising given the paucit y of x-ray analy

ses that support Respondent’s position. Only one of the six fully-credentialed readers found

pneumoconiosis, and he did so based on a film taken ten years before Decedent died. 15 (J.A. at 30- 31.) L essNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 23

16 Po well and P enm an evid ently ba sed the ir conclusions on fi lm take n
on November 26, 1984, and Clarke bas ed his analy sis on x-ray s taken the follow ing da y. qualified x- ra y analy st s re ach ed m yria d re sul ts , bu t t he A LJ permissib ly

consider ed the re aders’ respective qualifications and appropr iately discounte d the opini o ns of those n ot fully qualified. See Staton v. Norfolk & W . Ry. , 65 F.3d 55, 59 (6th Cir. 1995).

Inaddition to Woolum’s two letters, the ALJ considered opinions from eight other physicians. For simplicity, one can group these eight phy sicians into two c ategor ies: those Respondent

argues support her

(Clarke, Penman, Powell, and Wright); and those who back Petitioner ’s position

(Simmons, Powell, Anderson, Sargent, and Dahhan).

As the ALJ appropriately

recognized, threeof the opinions offered by Respondent’s g

roup (Clarke, Penman and Powell) have very little significa

nce because they

“did not cond

u ct complet e pulmonar

y e valuations of the m

iner” a nd “these physiciansbased

their opinions on the x-ray evidenc e, which Ihave previously f

ound not sufficient to es tablish the existence of CWP [Coal Workers’ Pneumocon iosis].” 16 (J.A. at 32-33.) As we have concluded before, merely

restating an x-ray does no t qualify “as a

reasoned medical judgment.” Co rn ett v. Benham Coal, Inc. , 27 F.3d 569, 576 (6th Cir. 2000). F urth ermore, an ALJ may not rely on a doctor ’s opinion that a patient has medical pneumoconiosis when the physician bases his opinion entirely on x-ray evidence the ALJ has already

discredited. Island Creek, 211 F.3d at 211- 12; Sahara Coal Co. v. F itts , 39 F.3d 781, 783 (7th Cir. 1994).

Alth ough stil l prob lemat ic, W righ t o ffere d the most persuasive testimony on R esponde nt’s beha lf. He ba sed his conclusionpartly on a putat ive ly positive x-ray

taken on March 30, 1985, but also on pulmonary function studies 24 Eastover Mining Co. v

. Will iams et al. No. 01-4064

revealing severe restrictive and o

bst ruc tive defects and arteria l blood gas studies that indicated substantial impairments. On this bas is, the AL J gave g reater weight t o Wright’s opinion “onthe issue of the existence of pneumoconiosis.” (J.A. at 35.) But Wright’s opi nion i s troubling b ecause

he only maintains

board ce rtifica tions in anesthes io logy

and pain manage

ment, nei ther of w hich is germane here. Moreover, W right testified tha t pneumoconiosis was a substantial and contributingfactor that led to the problems detected by the pulmonary function studies and blood gas tests, but Wright also stated that cigar ette smoking was the pr

edominan t cause of Decedent’s lung dise ase. Wrig

ht testifie d:

COU NS EL: Getting right do wn to the nitty -gritty in this, Docto r, you don’t think this man’s very poor pulmonary

function is a result of [medical] pneumoconiosis, do you?

WRIGHT: No.

COU NS EL: What is your opinion as their cause? [sic]

WRIGHT: His chronic obstruct ive lung disease with emphysema.

COU NS EL: And

in your opinion, wh at is the most probable or pr edom inant cause of that dis ea se ?

WRIGHT: The predominant caus e is proba bly cigarette smoking. (Dep. 21 at 362.) Even if one understands Wright to mean that smoking c aused mos t o f the problem, but medical pneumoconiosis still contributedto Wright’s poor pulmonary condition—thatsa ys nothing a bout the ul

timateissue, which is whether legal

pneumoconiosis hastened Decede nt’s deat h

. Recall that the ALJ concluded his discussion of Wright’sNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 25

testimony by explaining

that he g ave gr

eat weig ht to Wright’s opinion “on the issue of the existence of pneumoconiosis.” (J. A. at 35 ) (emphasis added). Wright never testified that pneumoco

niosis (legal or medical) hastened De cedent’s demise.

The conclusions reac hed by Petit ioner’s group of expert s are somew hat more useful. The ALJ reasonably discounted Simmons’ contribu

tion beca use Simm o ns seemed “equivocal at best.” (J.A. at 32.) The ALJ also di sc redited Anderson’s opinion because he did

not do pulmonary function studies on the min er an d only “suspected” smoking caused the COPD. Sargent’s opinion, however, is more helpful , becau se Sarg ent, board-c ertifie d in pulmona ry medicine , expressl

y concluded th at pneumoconiosis did not cause the miner’s death. T h e ALJ criticize d Sarge

nt’s a naly sis because Sargent never examined Decedent

and evidentl

y r elied on a

n incomple

te medical file that

did not includ

e pulmona

ry function studies. Nevertheless, Sargent concluded tha t Very clearly , this ma

n died of an acute event (gastro in testinal bleeding) during the time he was hospitalizedin July 1993. . . . Dr. Woolum thought that another po ss ib il it y f

or cause of death was pulmonary embolism.

. . . Theref

ore, the cause of death is either gas trointestinal bleed ing or pulmonary embolism, neither of which have been shown to be c ause d by pneumoco

niosis or ch ronic obstructive pulmonary disease. (J.A. at 285.) Again, the u ltimate question is not whether Decedent had medical or legal

pneumoconiosis, but whether legal pneumoconiosis hastened his death. Even as sumin g, arguendo , that ac cess to pu lmonary function studies wo

uld have caused Sargent to reconsider his opinion that the miner did not have medical pneumoconiosis, this anci ll ary point does not implica

te Sarg ent’s two

prim ar y conclusions articulated

in the above-quoted passage: (1) the miner died of
anacute event, probably

gastrointestinal bleeding but perhaps 26 Eastover Mining Co. v

. Will iams et al. No. 01-4064

17 W hen Dahhan first

examined Decedent

in 1983, Dahhan concl

uded that smoking c aused De ced ent’s pu lmon ary pro blem s. Likewise, Sargent explai ned that

Decedent’s blood gases s how ed se vere h ypox emic hype rcap nic respiratory f ailure on a chr on ic basi s—a finding that indica tes CO PD cause d by sm oking , not pn eum oco niosis. a pulmonary embolism; and (2) neither pneumoconiosis nor COPD causes either gastrointestinal bleeding or pulmonary embolism. Therefore, Sargent conc lude d tha t pneumoconiosis, even if it existed, did not cause the miner’s death.

The ALJ also struggled to dispatch with Dahhan’s opinion. Dahhan, board-certified in pulmonary medici n e, found no medical pneumoconiosis. The ALJ’s an alysis of Dahhan’ s reasoningis somewhat desu ltory , but he see

ms to critic ize Dahhan f or “fai l[ing] to ad

equatel y explain why the miner’s 37 ye ar [mi

ning ] hi st or y has nothing to do with his lung condition,” and for neglecting that COPD falls within the definitionof “legal” pneumoconiosis. (J.A. at 34. ) It makes
no sense, however, to assume that bec auseDahhan

does not explain why Decede nt’s work as a min er h as not ca

used his lung impairment, thenhis work as a miner must have caused his lung impa

irment. 17 Furthermore, although Dahhan concludedt hat the miner had COPD, only COPD cause d by coal dust constitutes legal pneumoconiosis. See 2 0 C.F.R. § 718.201(a)(2). Otherwi se, ever yone who developed CO PD fr o msmoking would have legal pneumoconiosis. Dahhan concluded

that the mi

ner’s “ death wa s contrib

uted to g reatly by his advanced chronic obstructive lung disease with no evidence that his death was contrib uted to or h astened b y his exposure to coal dus t or coal worker’s pneumoconiosis.” (J.A. at 280) (emphasis added.) Thus, Dahh an did not, as the ALJ claims, ignore COPD. Rather, Dahhan stated that coal dust did not cause the COPD. Most important, Dahhan appropriately addressed the real issue when he explained

that “[Decedent’s] death would have been at the same time and the same manner regar dless of h isNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 27

18 Responde nt effecti vely concedes this. Again, the onl y rel ev ant issue is wh ether legal pneumoconiosi s hast ened De ced ent’s de ath. In her brief, Respo ndent writes:

W ith respe ct to the issu e of wh ether p neum oco nio sis h astene d [De ced ent’ s] deat h, t

he re cord con tai ns f

ive (5) s ources of evidence, in clu din g: th e t rea tme nt not es of Dr . J err y Woolu m, the miner’s t

reating physi cian; the death cer tif icate; t he testi mony of Petiti oner [Decedent’s wife]; t he consultati ve report of D r. Da hhan and th e con sultative re por t of Dr . Sarge nt.
(Pe t’r Br. at 17.) Notably, Respondent negle cts to mention t he various e xposure to coal dust or the presence of occupationa l pneumoco

niosis, since it was the result of an upper GI bleed, [a] condition of the general public at large.” ( J.A. at 281.)

If one analyzed the e

vidence without the t

rea ting p hy sician’s opinion, it would be evident that substantial evidence does not su

pport t he A LJ’s conclusion that Respondent

met her burden of proof. Consider the evidence withou tWo ol um ’s in pu t: Re sp on de nt of fe re d n o b io ps y o r autopsy reports. Five of

the six fully-qualified x-ray readers
sawno pneumocon io sis, and the sixth (Simmons) was indecisive. None of the other medical evidenc e is incre dibly compe llin g. The dispo sitive que stion is w heth er legal pneumoco

niosis contributed

to the mine

r’s dea th. Only two physicians(Sarge

nt andDahhan) , both spec ialists in pulmonary

medicine, a dd ressed t his issue, and both concluded that coa l dust-re la ted disor ders ( lega l pneumoconiosis) did not hasten Decedent’s death.

Infact, without Woolum’s contribut ion, Petitioner would have no arg

ument but to

infer tha

t D e cedent must have suffered fromle gal pneumoconiosis because he worked f or decades as a mine

r, and sin ce he ha d legal pneumoconio si s, it must have contributed to his death. Sinc e this bas eless statement is gross ly

ins ufficient, the supportability of the ALJ’s conclusi on depen ds on Woolum, the treating physician. 18 28 Eastover Mining Co. v

. Will iams et al. No. 01-4064

tidbits of x-ray a nd m edica l evide nce tha t she em pha sizes else where

. The dea th certificate lists the cause of de ath as a pulmonary embolism, caused by COP D, itself

due to an acut e in tes ti nal bleed. COPD qualif ies as a t ype of le gal pn eum oco niosis o nly when cause d by c oal d ust, not an acute int esti nal bleed . Resp ond ent her self has no med ical kno wledge and an obvious bias . The ALJ di d not rely on her descr ipti on of Decedent. That leaves only Sargent and Dahhan, who ai d Pet it ion er’ s ca se, and Wool um, the trea ting phys ician. Woolum’s testimony suffers from several serious problems t hat re nder his opinion an inadequate basis for the AL J’s conclusionunless his hypothesis receive s dispropor tionately great we ig ht si mp ly be cause he worked as Decede nt’s treating physician. Since n o such presumption exists, there is no substantial evidence supporting the AL J’s conclusion.

Circumsta

ntia l fa ctors strongly

indicate that Woolum changed his orig inal opinion to meet Respondent’s needs. As summarized

above, the original AL

J, Jud ge R ippey, held a pre-he ar ing conference between the pa rties on February

14, 1995. At t hat ses si on, ALJ Rippey told Respondent’s counsel that he found Woolum’s initial letter insufficient to establi sh that pneumoconiosis played a r ole in Decedent’s death. Woolum’s first analysis stated “tha t thi s gentleman was disabled secondary

to his lung disease of which pneumoconiosis, inmy mind, was certainly a contributing factor.” (J.A. at72.) Woolum did not claim pne umoconios is caused the miner’s death.

After Respondent’s attorney le arned that Woolum’s initial concl usio nwould not suffice, Woolum drafted a new letter, th is time reckoning that, “within a reasonable deg ree o f medical probability ,” pneumoconios is “hastened [Decedent’s ] death.” ( Id .) Woolum wrot e the fi rst letter on February 24, 1994, butdid

not write the second memorandum until March 10 , 1995—less than a month after the parties met with AL J Ri pp ey. Woolum treated Decedent for four t neen ye ars, but did not d ia gnose him with pneumoconiosis until after he allegedly died from it.No. 01-4064 Eastover Mining Co. v

. Will iams et al. 29

19 One coul d vie w th e ALJ’ s deci sion to cred it W oolu m’s testi mony d espite the s urroundi ng cir cumstanc es as a “ clearly errone ous” f actua l decision, but the ALJ is a judge of credibili ty and, however awkward the situat ion, the ALJ may have b elieved W oolu m alwa ys intended to e xpress his honest belief that legalpneumoco niosis caused the mi ner’s death. Even so, the p rob lem with the pro ceed ings be low is more legal mistake that fac tua l error

— assum ing W oolu m’s op inion d eserv ed so me w eight, it doe s not al one cons ti tut e subs tantial evi dence i n Respon dent’ s f avor unless the AL J and the B RB affo rded the tre ati ng phy sic ian’ s opi nion

muc h grea ter significa nce tha t its inheren t persu asive va lue war rants. This seems like a case in whi ch the t reating phy sician wanted to help his pat ient’s family. Despite Woolum’s almost certainly be

nevolent inte nt, the se quence

of event s makes his new conc lusion dubi ous. 19

N otwithstanding Woolum’s sign ificant c redibilit y pr oblem, there are othe

r reasons to doubt h

is conclusion. Fir st , as ALJ Rippey noted, even in his second letter, Wo olum could

only conclude with “a reasonable degre e of medi ca l probability” that pneumoconiosis contributed to the miner’s death, rather thanthe usual phrase, “reasonab l e degree of medical certainty .” (J.A. at 255-56.) (emphasis added.) It isunclear what “reasonable degree

of medical probability” means. The
more common “r

easonab le deg re e o f m ed ic al ce rt ai nt y” already reflects the incertitude inherent in medical
co nc lu si on s— “c er ta in ty” in medicine only means “nearly sure” relative

to the existe

ntia l sense of the word “certain.” If a “medic al certa

inty ” is a con

viction short of complete
ce rt ai nt y, thena “medical probability ” must mean something even less sure. Second, Woolum attempted to connect the pulmonary
embol ism to Dece dent’s min

ing history

by s urmising that, altho ugh the pulmonary embolus direc tly caused the miner’s death, pneumocon iosis hastened his demise because the miner’s “lack of

oxyg en [and] his r

etained carbon d ioxide all played an effect on all parts of his body.” (J.A. at 277.) Put di ff er en tl y, Woolum arg uedthat because Decedent had 30 Eastover Mining Co. v

. Will iams et al. No. 01-4064

pneumoconiosis, his body lacked o xyg en and excessively retained carbon dioxide. This weake nedthe miner, “playe d
a neffect on all parts of his body ,” and thereby hastened a death that would have occurred anyway fromthe pulmonary embolus. (

Id .) Even if this is an accurate medical conclusion, it is legally inadequa

te. Again, Petitioner must show that pneumoconi os is “has ten[e ]d

the miner’s death.” 20 C.F.R. § 718.205(c)(5). One can alw ay s claim, a s Woolum did, that if pneumoconiosis makes someone weaker, it makes them less resistant to some other trauma. If, f or instance , a miner

with pneumoconiosis gets hit by a tr ain and bleeds to deat

h , Woolum (or someone adopting his position) would argue that the pneumoconiosis “hastened” his de ath beca use he ble d to death somewhat more quickly tha n someone without pneumoconiosis. This is absurd, of co urse, an d presuma

bly notwhat Congress meant by “hasten. ” Und er Woolum’s interpretation, p neu mo co ni os is wo ul d v ir tu al ly a lw ays “hasten” death to at least some minimal degree. L egal pneumoconiosis only “has tens” a death if it does s o thro ugh
a specifically de fined

process that reduces the miner’s life by
an e st im ab le ti me . W oo lu m’ s l et te r i s c on cl us or y an d inadequa te because

Woolum just a sserts tha t becaus e (in Woolum’s opinion) the miner had pneumoconiosis, the disease must have hastened his death. Third, the ALJ ignores Woolum’s credentials. Woolum ha s no special

expertise

in readi ng x-ray s, but t he ALJ gave weight to Woolum’s x-ray analy sis that he did not give to the fully-cre dentialed

readers who found no evidence of medical pneumoconiosis. Woolum has no board c ertific ati on i n pulmonary

medicine, but the ALJ acc ept ed Woolum’s assertion that a coal du st-related ailment contributed to the miner’s demise over the opinions of two board-certified pulmonary specia

lists who reached the opposite conclusion. Althoug h t he DOL’s new re gulations regarding tre ating physicians did not take

effect untilafter the AL J reache d hisNo. 01-4064 Eastover Mining Co. v

. Will iams et al. 31

20 There is anot her c oncern ing is sue, perhaps only a min or procedural quirk

. To receive be nefits as a survivor, Respo ndent mu st show at least that le gal pneu moconi osi s “ has ten [e] d th e mi ne r’ s de ath .” 20 C. F.R. § 718 .205 (c)(5 ). Th e in it ial opi nion draf ted by ALJ Kichuk

concluded that “the miner’ s pneumoconiosi s was a contributing factor in causing his dea th.” In it s second re m and , the B RB instructed ALJ Kich uk “to [re]cons ider whethe r the existe nce o f pne umo con iosis is estab lished.” (J. A. at 47.) It s eems unlikely and bizarre that t

he BRB could have meant for the part ies to r eli ti gate the exi ste nce of leg al pn eumoconi osis but n ot wheth er it caus ed the miner ’s death . Put d ifferently, it wou ld be odd for th e BRB to ha ve ef

fectively conc luded that “we don ’t

know whether the miner had pneumoc oniosis, but i f he did, it must have c ontrib uted to his dea th.” On the second remand, the part ies lit igated both exist ence and causation. Th e AL J co nclud ed tha t Resp ond ent me t h er burd en of establishing the exi stence of leg al pneumoconi osis, ” but he n ever deci ded whether he al so t hought

Responden t met

her burden of

est abl i shing that legal pneu moc onio sis contributed to the miner’ s death. Yet, i n the thi rd BRB opinion (affi rming the se co nd remand), t he BRB concluded that “[i] nasmuch as the administ rative l aw judge’s determinati on that clai mant est abl ishedthe existe nce o f pneu moc onio sis . . . and dea th du e to pne um oco niosis

. . . is suppor ted by substanti al evidence, we aff irm the administrati ve law judge ’s award of surviv or’s benef

it s.” (J. A. at

15) (emp hasis added.) Since the ALJ opinion then under re view n ever concluded anythi ng ab out ca usation , one w ond ers ho w the B RB could affir m the ALJ’s conclusion t hat “death [ was] due to pne umo con iosis.” ( Id .) This may render the BRB ’s thi rd order unsu pported by su

bstant ial evi dence. Th e eas ies t s olut ion ma y be t o inf er that the ALJ deci sion following the s ec ond re mand indirectly addressed both exist ence and

causa tion. The whole issue is imma terial be cause Resp ond ent did not offer any evidence of causation i n the fi rst two administ rative heari ngs that

she did not offer again i n t he third. A nd, sinc e the third BR B o rder is prop erly before this Court, all conc lusi ons d rawn b y that op inion a re pro perly befo re us as w ell. decision, they would not alter the outcome of this case. Under the new regulations, theALJ must consider a multitude of factors that, viewed overall, simply ask whe ther the treatingphysician h a s offered a persuasive opinion. See 20 C.F.R. § 718.104(d). In this case, he did not. To reach h is conclusion, the ALJ had to give prefe rence to the treating physician. Since that is impermissible, the BRB erred i n affirming the ALJ’s decision. 20 32 Eastover Mining Co. v

. Will iams et al. No. 01-4064

The confusion, however, does emphasize the need f or administrat ive bod ies to m ake the ir opin ions cle ar. For all the afore me ntioned reasons, we REVERSE the Benefits Review Board.