1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0261P (6th Cir.)

File Name: 03a0261p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

EASTOVER MINING CO.,

Petitioner,

v.

DOROTHY S. WILLIAMS and

DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

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No. 01-4064

On Petition for Review from an Order of the Benefits

Review Board, United States Department of Labor.

No. 00-0362 BLA.

Submitted: July 16, 2003

Decided and Filed: July 31, 2003 

Before: KEITH, SUHRHEINRICH, and CLAY, Circuit

Judges.

2 Eastover Mining Co. v. Williams et al. No. 01-4064

1With respect to his federal black lung benefits, an ALJ found the

existence of pneumoconiosis established because conflicts in the record

among qualified physicians created “true doubt” that the ALJ resolved in

_________________

COUNSEL

ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus,

GREENBERG & TRAURIG, Washington, D.C., for

Petitioner. Fred M. Busroe, Jr., CARTER & BUSROE,

Harlan, Kentucky, for Respondents.

_________________

OPINION

_________________

CLAY, Circuit Judge. Petitioner Eastover Mining Co.

appeals an order issued by the Benefits Review Board of the

United States Department of Labor, finding Respondent

Dorothy Sue Williams, widowof Decedent Gordon Williams,

entitled to an award of benefits pursuant to the Black Lung

Benefits Act, 30 U.S.C. §§ 901-45. For the reasons set forth

below, we REVERSE the Benefits Review Board.

FACTS

Decedent was born on January 13, 1927 and died on

July 13, 1993. According to his death certificate, Decedent

died from a pulmonary embolism due to Chronic Obstructive

Pulmonary Disease (“COPD”), itself caused by an acute

gastrointestinal bleed. Decedent smoked between one pack

and one-half pack of cigarettes daily for approximately four

decades before quitting in 1986. Decedent worked as a

surface miner for thirty-seven years, retiring in 1983 when the

mine where he worked ceased operations. He applied for and

ultimately received federal black lung benefits, although state

officials denied his claimfor occupational disability benefits.

1
No. 01-4064 Eastover Mining Co. v. Williams et al. 3

Decedent’s favor, because pneumoconiosis is a progressive disease, and

because the ALJ concluded that a single doctor’s opinion could not

outweigh a greater number of medical opinions supporting Decedent. The

Supreme Court and other courts, including this one, have subsequently

discredited the fact-finding methods employed in the 1983 proceeding.

See, e.g., Dir., OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81

(1994) (rejecting the “true doubt” rule); Nat’l Mining Ass’n v. Dep’t of

Labor, 292 F.3d 849, 863-64 (D.C. Cir. 2002) (rejecting the view that

latent pneumoconiosis is generally progressive based on the Department

of Labor’s concession that latent pneumoconiosis rarely progresses);

Woodward v. Dir., OWCP, 991 F.2d 314, 321 (6th Cir. 1993) (rejecting

reliance on numerical superiority as a valid method to resolve conflicts in

the record).

2

Decedent first saw W oolum in 1979. 

3

A “B-reader” has demonstrated proficiency in assessing and

classifying x-rays for pneumoconiosis by successfully completing an

examination conducted by or on behalf of the Department of Health and

Human Services. 20 C.F.R. § 718.202(a)(1)(ii)(E). A board-certified

radiologist has received a certification in radiology from either the

American Board of Radiology or the American Osteopathic Association.

Id. at § 718.202(a)(1)(ii)(C). Four of the six readings performed by fullycredentialed analysts involved films taken between 1983 and 1985. The

remaining two fully-credentialed analysts reviewed films from July of

1993, less than two weeks before Decedent died. The one fullycredentialed reader who found pneumoconiosis reached his conclusion

based on the analysis of an October 18, 1983 film, and he later partly

recanted his diagnosis. 

Other readers with less expertise analyzed the x-rays with conflicting

results. Four readers with no formal expertise in radiology whatsoever

saw pneumoconiosis in films taken in October and November of 1984, as

Decedent’s relevant medical history begins in April of

1982, when Dr. Jerry Woolum diagnosed Decedent with

COPD and acute bronchitis.

2

 Woolum has board

certifications in general practice and surgery. Decedent saw

many other physicians in connection with his claim for living

worker benefits and these doctors ordered numerous x-rays.

Sixteen different readers analyzed these images, and only one

of the six B-readers board-certified in radiology felt any film

showed pneumoconiosis.3 

4 Eastover Mining Co. v. Williams et al. No. 01-4064

did a non-board-certified B-reader. A board-certified radiologist (but not

a B-reader) found no pneumoconiosis based on film from August and

November of 1983, as did a B-reader lacking board certification. 

Although this muddle of different certifications and different films

understandably tends to create confusion, one matter is completely clear:

only one of the six fully-credentialed readers found pneumoconiosis. He

did so based on a film taken in 1983 and later expressed reservations

about his opinion.

In March of 1983, Dr. A. Dahhan examined Decedent in

connection with his living miner disability claim. Although

Dahhan believed Decedent suffered from a pulmonary or

respiratory impairment, Dahhan thought Decedent’s

continued smoking caused the problem because the pattern of

impairment disclosed in pulmonary function studies, the

absence of x-ray evidence of pneumoconiosis, and the

presence of occasional crepitations on clinical examination

are all indicia of disability induced by smoking, not coal dust.

On October 20, 1984, Dr. Robert Penman examined

Decedent. Although Penman had neither B-reader

certification nor board certification in radiology, Penman

diagnosed Decedent with pneumoconiosis based on

Decedent’s x-rays. Penman concluded that Decedent’s

suffered pulmonary impairment partly from pneumoconiosis

and partly from smoking. Penman could not separate the two

risk factors.

Dr. William Anderson examined Decedent on

November 28, 1984. Anderson found no evidence of

pneumoconiosis in Decedent’s x-rays. Anderson instead

suspected COPD due to smoking. Anderson also diagnosed

hypertensive cardiovascular disease, mixed psychoneurosis

and osteoarthritis. 
No. 01-4064 Eastover Mining Co. v. Williams et al. 5

4

Like many of the physicians discussed herein, Dr. Clarke’s first

name does not appear in the Joint Appendix.

5

To assist Decedent in obtaining living miner disability benefits

immediately prior to his retirement, Woolum wrote on June 8, 1983 that

Decedent suffered from chronic peptic ulcer disease with acute

exacerbation, diverticular disease of the colon with periodic

exacerbations, hypertension controlled with medication, and manic

depression, requiring chronic medication. At a deposition on August 22,

1985, Woolum declared that Decedent’s x-rays revealed evidence of

pneumoconiosis and that it contributed to his COPD. Woolum offered no

basis for this conclusion during the deposition or in any of Decedent’s

medical records. 

Dr. Clarke4 examined Decedent on December 17, 1984. He

diagnosed pneumoconiosis by x-ray as well as severe

restrictive and obstructive lung disease based on pulmonary

function studies. Clarke declared that pneumoconiosis

rendered Decedent totally disabled. 

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

Wright read one of Decedent’s x-rays as positive for

pneumoconiosis and interpreted his pulmonary function

studies as showing severe restrictive and obstructive

impairment, but concluded that smoking caused Decedent’s

poor pulmonary function. 

With respect to the Woolum, Decedent’s “treating

physician,” pneumoconiosis is mentioned only briefly in the

“previous history” section of his report.5 Pneumoconiosis

appears in Woolum’s medical record twice more—first, in

December of 1986, when Decedent reported anxiety and

depression related to his pursuit of black lung benefits, and

second, in January of 1987, when Woolum again listed

pneumoconiosis in the “previous history” portion of amedical

report. These are the only references to pneumoconiosis

Woolum recorded. 

Over the next eleven years between Decedent’s initial visit

to Woolum and his eventual death, Woolum treated Decedent

6 Eastover Mining Co. v. Williams et al. No. 01-4064

for a cyst, hypertension, a hernia, acute influenza, peripheral

vascular disease, acute bronchitis, pneumonia, a transient

ischemic attack, several episodes of respiratory distress,

carotid artery disease, acute gastrointestinal bleeding, a

urinary tract infection, and acute septicemia. In July of 1990,

Woolum diagnosed end-stage COPD. During Decedent’s

final hospitalization, Woolum reported massive upper

gastrointestinal bleeding, erosive gastritis, and active peptic

ulcer disease. Decedent died despite surgical intervention

intended to stop the bleeding.

The hospital discharge papers included these final

diagnoses: (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 pulmonale; and (8) peripheral

vascular disease. During his treatment of Decedent, Woolum

never conducted regular pulmonary function studies 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 death. On January 24, 1994, after

administrative processing by the Department of Labor

(“DOL”), a claims examiner denied Respondent’s claim

because she failed to establish Decedent died from

pneumoconiosis. On May 25, 1994, DOL reversed itself and

found the evidence sufficient. At Petitioner’s request, the

claim proceeded to an Administrative Law Judge (“ALJ”) for

trial. 

On May 8, 1995, the ALJ issued a decision and order

denying Respondent’s claim. ALJ Charles P. Rippey

considered a February 24, 1994 report by Woolum that

claimed:

[Decedent’s] pulmonary disease progressed during the

years I cared for him and the last several years of his life
No. 01-4064 Eastover Mining Co. v. Williams et al. 7

6Woolum hypothesized that, although the pulmonary embolus

directly caused the miner’s death, pneumoconiosis hastened his demise

because the miner’s “lack of oxygen [and] his retained carbon dioxide all

played an effect on all parts of his body.” (J.A. at 277.) 

he was in respiratory failure . . . most of the time. He

was hospitalized several times requiring ventilatory

support to keep him alive. The terminal event was likely

a pulmonary embolus. Unfortunately, an autopsy was

not granted by the family. I have no problem stating that

this gentleman was disabled secondary to his lung

disease of which pneumoconiosis, in my mind, was

certainly a contributing factor.

(J.A. at 72.) Before trial, however, ALJ Rippey met with both

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 March 10, 1995. This time, Woolum concluded,

“within a reasonable degree of medical probability,” that

pneumoconiosis “hastened [Decedent’s] death.”6 (Id.)

Although ALJ Rippey gave “extra weight to the opinion of

Dr. Woolum because he was the treating physician,” ALJ

Rippey based his decision to deny benefits on several factors.

First, the March 10, 1995 opinion conflicted with his

February 24, 1994 letter. Second, the March 10, 1995 letter

failed to specify “in what matter the pneumoconiosis hastened

[Decedent’s] death.” (Id.) Judge Rippey asked, rhetorically,

whether “it led to his development of an embolus earlier than

it would otherwise have developed? Did the pneumoconiosis

cause death earlier than would otherwise have occurred once

the embolus developed?” (Id.) Third, ALJ Rippey noted that

the March 10, 1995 letter stated only that Woolum could

conclude with a reasonable degree of medical “probability”

that the pneumoconiosis hastened the death, as opposed to the

usual language, “with a reasonable degree of medical

certainty.” (Id.) 

8 Eastover Mining Co. v. Williams et al. No. 01-4064

Finally, ALJ Rippey refused “to ignore the surrounding

circumstances.” (Id.) Judge Rippey “infer[red] that Dr.

Woolum’s March 10, 1995 opinion was given following a

discussion with [Respondent’s] counsel, and thatDr.Woolum

wanted to say all that he could to strengthen [Respondent’s]

case.” (J.A. at 73.) 

Petitioner filed a timely appeal to the Benefits Review

Board (“BRB”), which vacated ALJ Rippey’s decision on

April 24, 1996. The BRB rejected ALJ Rippey’s

characterization of Woolum’s second opinion as a shift or

departure from his initial conclusion; rather, the BRB termed

Woolum’s new opinion a “clarification” of his earlier

conclusion. (J.A. at 67.) The Board also refused to find that

the timing of Woolum’s second letter made Woolum’s

statements less reliable. The BRB thus remanded the case to

a new ALJ for further consideration.

The new ALJ, Clement J. Kichuk, gave little weight to

Petitioner’s experts. Instead, holding for Respondent, ALJ

Kichuk argued that:

[i]t is apparent from the voluminous medical reports that

Dr. Woolum had [Decedent] under close and constant

treatment over a period of fourteen years which provided

him with an outstanding opportunity to determine the

exact nature and cause of his patient’s pulmonary and

respiratory impairment with reliance upon repeated tests,

evaluations, and observations of response to proscribed

medicines and therapy.

(J.A. at 61.) This time, Petitioner appealed to the BRB.

Although the BRB initially affirmed ALJ Kichuk, the BRB

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 doubt” test that
No. 01-4064 Eastover Mining Co. v. Williams et al. 9

7

As noted, under the now-discredited “true doubt” test, a claimant

could establish the existence of pneumoconiosis if conflicts in the record

among qualified physicians created “true doubt” about the presence of the

disease. 

8

Dahhan previously examined Decedent in March of 1983, in

connection with his living miner claim. Although Dahhan believed

Decedent suffered from a pulmonary or respiratory impairment, Dahhan

thought Decedent’s continued smoking caused the problem because the

pattern of impairment disclosed in pulmonary function studies, the

absence of x-ray evidence of pneumoconiosis, and the presence of

occasional crepitations on clinical examination all indicated disability

induced by smoking, not coal dust. 

the Supreme Court found impermissible in Director, OWCP

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

On the second remand, Petitioner introduced evidence that

radiologists who examined Decedent’s x-rays found no

evidence of pneumoconiosis. Importantly, Petitioner offered

the analysis of Dr. A. Dahhan, a physician board-certified in

internal medicine and pulmonary medicine who was one of

the many doctors to physically examine Decedent in the early

1980s. Dahhan stated that Decedent died due to an upper GI

bleed, possibly caused by the steroids he took for

bronchospasms.

8

 After reviewing all x-rays and medical

records, Dahhan concluded:

There is insufficient objective evidence to justify the

diagnosis of coal worker’s pneumoconiosis . . . . [H]is

death was contributed to greatly by his advanced chronic

obstructive lung disease with no evidence that his death

was contributed to or hastened by his exposure to coal

dust or coal worker’s pneumoconiosis. 

(J.A. at 280.) Dr. Dale Sargent, board certified in pulmonary

diseases and critical care, rendered an opinion similar to

Dahhan’s. Sargent noted that Decedent’s blood gases showed

severe hypoxemic hypercapnic respiratory failure on a

10 Eastover Mining Co. v. Williams et al. No. 01-4064

chronic basis—a finding suggesting COPD due to smoking,

not pneumoconiosis. According to Sargent:

In my opinion, with a reasonable degree of medical

certainty, [Decedent] had severe chronic obstructive

pulmonary disease secondary to cigarette smoking. This

is the diagnosis put forth by Dr. Woolum. In fact, coal

worker’s pneumoconiosis is not mentioned in Dr.

Woolum’s diagnostic impressions either at the time of

admission or time of discharge. Chronic obstructive

pulmonary disease and pulmonary emphysema can cause

severe lung disease without characteristic chest x-ray

changes of pneumoconiosis. Therefore, I believe the

cause of this miner’s respiratory impairment was

pulmonary emphysema due to cigarette smoking, and not

due to coal worker’s pneumoconiosis. 

(J.A. at 284.) Sargent also stressed that even assuming

Decedent had pneumoconiosis, it did not cause his death.

Sargent wrote:

Very clearly, this man died of an acute event

(gastrointestinal bleeding) during the time he was

hospitalized in July 1993. There is no post mortem

examination, so the cause of the death is conjectural.

Nevertheless, this man had been bleeding recurrently

during his hospitalization and it is certainly possible that

he died from acute gastrointestinal bleeding. Dr.

Woolum thought that another possibility for cause of

death was pulmonary embolism. None of the physicians

caring for the patient at this point indicated that

[Decedent] died due to either his lung disease or to coal

worker’s pneumoconiosis. Therefore, the cause of death

is either gastrointestinal bleeding or pulmonary

embolism, neither of which have been shown to be

caused by pneumoconiosis or chronic obstructive

pulmonary disease. 
No. 01-4064 Eastover Mining Co. v. Williams et al. 11

(J.A. at 285.) In his decision, ALJ Kichuk disregarded the

conflicting x-ray analyses, observing that the “evidence of

record does not indicate that [Respondent] has established the

presence of complicated coal workers’ pneumoconiosis by

chest x-ray.” (J.A. at 31.) Judge Kichuk also noted the lack

of any biopsy or autopsy evidence to support a diagnosis of

pneumoconiosis. 

Nevertheless, ALJ Kichuk found Respondent’s position

more compelling. ALJ Kichuk said that Woolum’s opinion:

[was the] most reasoned and persuasive . . . because it

includes the most comprehensive analysis of all the

elements of the miner’s occupational and medical

history. Moreover, Dr. Woolum personally treated the

miner and was his principal caregiver for fourteen (14)

years, from 1979, until [Decedent] passed away in July

of 1993. His treatment of [Decedent] over the years is

fully and painstakingly documented in the record, which

includes, but is not limited to, thirteen (13)

hospitalizations (at least five for acute respiratory failure)

and each time conducting chest x-rays, EKGs, and

arterial blood gas studies. From January of 1990, Dr.

Woolum also diagnosed [Decedent] with cor pulmonale

and end-stage chronic obstructive pulmonary disease. 

I accord greatest weight to Dr. Woolum’s opinion, not

simply because he was the miner’s treating physician for

many years, but because he based his medical opinion

upon numerous objective studies obtained during the

miner’s multiple hospital admissions for acute

respiratory distress. In sum, Dr. Woolum specifically

identified the studies and observations upon which he

relied and the conclusions he reached are consistent with

and supported by the underlying objective evidence of

record.

12 Eastover Mining Co. v. Williams et al. No. 01-4064

9

Technically, this Court is reviewing the BRB’s decision affirming

the ALJ, not the ALJ’s decision itself. Thus, we do not consider whether

the BRB’s decision was supported by substantial evidence, but whether

the BRB correctly concluded that substantial evidence supported the

ALJ’s decision. See, e.g., Zimmerman v. Dir., OWCP, 871 F.2d 564, 567

(6th Cir. 1989); Bizzarri v. Consolidation Coal Co., 775 F.2d 751, 753

(6th Cir. 1985). The standards of review are the same. Cross Mountain

Coal, Inc. v. Ward, 93 F.3d 211, 215 (6th Cir. 1996) (“The standards of

review for the BRB and this court are the same.”) (citing Welch v. Benefits

Review Bd., 808 F.2d 443, 445 (6th Cir.1986) (per curiam)). This Court

reviews the legal issues de novo but affords deference to relevant factual

findings.

(J.A. at 35.) ALJ Kichuk added that he did not believe

Woolum’s opinion was a “gratuity extended to a patient by a

sympathetic treating physician.” (Id.) 

When the BRB affirmed, Petitioner timely appealed to this

Court. 

DISCUSSION

This appeal presents issues of administrative practice and

procedure that are mixed questions of law and fact. We

review questions of law de novo. Peabody Coal Co. v. Greer,

62 F.3d 801, 804 (6th Cir. 1995) (“This Court has plenary

authority to review the Board's legal conclusions.”) (citing

Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1119 (6th

Cir.1984)). To the extent we must review factual conclusions

as well, we do so with much greater deference. 33 U.S.C.

§ 921(b)(3). This Court will affirm an ALJ’s factual findings

when substantial evidence supports those conclusions.

Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230-31 (6th

Cir. 1994). Where, however, an ALJ has improperly

characterized the evidence or failed to account of relevant

record material, deference is inappropriate and remand is

required.9 Dir., OWCP v. Rowe, 710 F.3d 251, 255 (6th Cir.

1983). From the outset, we note that claimants have the

burden of proof in black lung benefit proceedings. The Black

Lung Benefits Act, 30 U.S.C. §§ 901-62 (1994), creates an
No. 01-4064 Eastover Mining Co. v. Williams et al. 13

10In its entirety, the applicable regulation reads:

(c) For the purpose of adjudicating survivors' claims filed on or

after January 1, 1982, death will be considered to be due to

pneumoconiosis if any of the following criteria is met:

(1) Where competent medical evidence establishes that

pneumoconiosis was the cause of the miner's death, or

(2) Where pneumoconiosis was a substantially contributing

cause or factor leading to the miner's death or where the

death was caused by complications of pneumoconiosis, or

(3) Where the presumption set forth at § 718.304 is

applicable.

(4) However, survivors are not eligible for benefits where

the miner's death was caused by a traumatic injury or the

principal cause of death was a medical condition not related

to pneumoconiosis, unless the evidence establishes that

pneumoconiosis was a substantially contributing cause of

death.

(5) Pneumoconiosis is a "substantially contributing cause"

of a miner's death if it hastens the miner's death.

20 C.F.R. § 718.205. The presumptions in § 718.304 apply only when a

claimant can offer certain medical evidence, and Respondent does not

claim that any of the presumptions applies in this case. See 20 C.F.R.

§ 718.304. 

adversarial administrative procedure designed to require

mining companies to pay those miners (or the survivors of

those minors) who legitimately suffer from a class of different

coal dust-related pulmonary injuries commonly categorized

as pneumoconiosis. Petitioner is eligible for benefits if

pneumoconiosis caused or “hasten[e]d the miner’s death.”10

20 C.F.R. § 718.205(c)(5). Congress defined

“pneumoconiosis” as a “chronic dust disease of the lung and

its sequelae, including respiratory and pulmonary

impairments, arising out of coal mine employment.” 30

U.S.C. § 902(b) (1994). 

14 Eastover Mining Co. v. Williams et al. No. 01-4064

Department of Labor (DOL) regulations help further

describe “pneumoconiosis” by providing an illustrative listing

of diseases that pneumoconiosis includes:

For the purpose of the Act, pneumoconiosis means a

chronic dust disease of the lung and its sequelae,

including respiratory and pulmonary impairments,

arising out of coal mine employment. This definition

includes, but is not limited to, coal workers’

pneumoconiosis, anthracosilicosis, anthracosis,

anthrosilicosis, massive pulmonary fibrosis, progressive

massive fibrosis, silicosis, or silicotuberculosis, arising

out of coal mine employment. 

20 C.F.R. § 718.201 (1997). As this regulation makes clear,

legal “pneumoconiosis” encompasses medical conditions

other than clinical pneumoconiosis. See, e.g., Nance v.

Benefits Review Bd., 861 F.2d 68, 71 (4th Cir. 1988). Clinical

or medical pneumoconiosis is a lung disease caused by

fibrotic reaction of the lung tissue to inhaled dust that is

generally visible on chest x-ray films. See, e.g., Usery v.

Turner-Elkhorn Mining Co., 428 U.S. 1, 6-7 (1976). Legal

pneumoconiosis includes all lung diseases meeting the

regulatory definition of any lung disease that is significantly

related to, or aggravated by, exposure to coal dust. See, e.g.,

Hobbs v. Clichfield Coal Co., 917 F.2d 790, 791 (4th Cir.

1990). 

Under DOL regulations, a claimant may establish legal

pneumoconiosis by any of four different methods of proof:

(1) x-ray evidence; (2) autopsy or biopsy evidence;

(3) evidence of complicated medical pneumoconiosis or

progressive massive fibrosis; 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 presence of evidence favorable to the

claimant or even a tie in the proof will not suffice to meet that

burden. Id. 
No. 01-4064 Eastover Mining Co. v. Williams et al. 15

Despite a certain degree of lingering confusion among the

courts of appeals, it has become overwhelmingly evident that

the testimony of the “treating physician” receives no

additional weight. Sometimes termed the “treating physician

rule,” claimants have argued that the treating physician’s

analysis should receive greater significance in ALJ decisions

(if not dispositive weight) relative to analyses performed by

other experts. 

In addition to the black lung context, the “treating physician

rule” plays a role in Social Security proceedings pursuant to

regulations that stipulate that the Commissioner of Social

Security must give special weight to the claimant’s treating

physician when determining whether a claimant deserves

disability benefits. See 20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2) (2002). Courts have also applied the “treating

physician rule” in disability determinations under employee

benefit plans covered by the Employee Retirement Income

Security 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) (Ginsburg, J.) (criticizing, in

an opinion 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. at

1969, the Supreme Court recently reversed a Ninth Circuit

decision, Nord v. Black & Decker Disability Plan, 296 F.3d

823, 831 (9th Cir. 2002), that afforded deference to treating

physicians in ERISA-related disability determinations.

Although Black & Decker dealt with ERISA, the unanimous

Court disapproved of the “treating physician rule” with

language that criticizes the principle itself, rather than its

operation in an ERISA context. See Black & Decker, 123

S.Ct. at 1971. As Justice Gisburg explained, ERISA

regulations that require a “full and fair” assessment of claims

“do not command plan administrators to credit the opinions

of treating physicians over other evidence relevant to the

16 Eastover Mining Co. v. Williams et al. No. 01-4064

11As noted, Social Security benefit determinations are governed by

regulations that require deference to treating physicians, see 20 C.F.R.

§§ 404.1527(d)(2), 416.927(d)(2), while neither ERISA nor Black Lung

regulations contain a similar requirement. The Black & Decker Court

noted that deference to treating physicians makes more sense in the Social

Security context because “[p]resumptions employed by the [Social

Security] Commissioner’s regulations grow out of the need to administer

a large benefits system efficiently.” Id. at 1971 (quotation omitted). This

rationale is inapplicable to the black lung benefits scheme, which affects

dramatically fewer people and whose remaining claimants will decrease

naturally as time passes. 

claimant’s medical condition.”11 Id. at 1967. The Court

explained in detail:

The question whether a treating physician rule would

increase the accuracy of disability determinations under

ERISA plans . . . seems to us one the Legislature or

superintending administrative agency is best positioned

to address. As compared to consultants retained by the

plan, it may be true that treating physicians, as a rule,

have a greater opportunity to know and observe the

patient as an individual. Nor do we question the . . .

concern that physicians repeatedly retained by benefits

plans may have an incentive to make a finding of ‘not

disabled’ in order to save their employers money and to

preserve their own consulting arrangements. But the

assumption that the opinions of a treating physician

warrant greater credit than the opinions of plan

consultants may make scant sense when, for example, the

relationship between the claimant and the treating

physician has been or short duration, or when a specialist

engaged by the plan has expertise the treating physician

lacks. And if a consultant engaged by a plan may have

an “incentive” to make a finding of “not disabled,” so a

treating physician, in a close case, may favor a finding of

“disabled.” Intelligent resolution of the question of

whether routine deference to the opinion of a claimant’s

treating physician would yield more accurate disability
No. 01-4064 Eastover Mining Co. v. Williams et al. 17

12Judge Kennedy still dissented from Peabody Coal v. Groves,

explaining that she saw “no reason why a treating physician’s opinion that

one condition caused or contributed to another should be accepted in the

face of expert opinions to the contrary, at least where there is no logical

explanation for doing so offered by the ALJ.” 277 F.3d at 837 (Kennedy,

J., dissenting). 

determinations, it thus appears, might be aided by

empirical investigation of the kind courts are ill-equipped

to conduct. 

Id. at 1971 (internal quotations and citations omitted). The

Court thus notes that treating physicians may have strong proclaimant biases and lack the expertise held by non-treating

doctors. These critiques of the “treating physician rule” apply

with equal force to the notion that treating physicians should

receive deference in black lung proceedings. 

In fact, the courts of appeals, including this one, have often

recognized that there is no “treating physician rule” in black

lung cases, although this Court’s jurisprudence is somewhat

equivocal. In Tussey v. Island Creek Coal Co., 982 F.2d 1036

(6th Cir. 1993), this Court wrote that “opinions of treating

physicians are entitled to greater weight than those of nontreating physicians.” Id. at 1042. Subsequently, however, we

withdrew from the language in Tussey, explaining that Tussey

“did not suggest that treating physicians should automatically

be presumed to be correct—we indicated that their opinions

should be ‘properly credited and weighed.’”12 Peabody Coal

Co. v. Groves, 277 F.3d 829, 834 (6th Cir. 2002) (quoting

Tussey, 982 F.2d at 1042). In another case more recent than

Peabody Coal, we unambiguously stated that “the

misconceived ‘treating physician presumption’ does not

exist.” Wolf Creek Collieries v. Dir., OWCP, 298 F.3d 511,

521 (6th Cir. 2002) (emphasis added); see 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. 2002), for the proposition that ‘“[t]he

consensus among courts has been that an agency adjudicator

18 Eastover Mining Co. v. Williams et al. No. 01-4064

may give weight to the treating physician’s opinion when

doing so makes sense in light of the evidence and the record,

but may not mechanistically credit the treating physician

solely because of his relationship with the claimant”); Griffith

v. Dir., OWCP, 49 F.3d 184, 187 (6th Cir. 1995) (citing

Tussey for the Court’s conclusion that “under these

circumstances, the ALJ was not required to give greater

weight to the opinion of the treating physician”). 

Other circuits have also rejected the treating physician rule

in black lung litigation. See, e.g., Kennellis Energies, Inc. v.

Hallmark, __ F.3d __, 2003 WL 21464596, at *6 (7th Cir.

2003) (“[A] preference or the treating physician’s opinion . . .

has been rejected by this Circuit.”) (citations omitted);

Peabody Coal Co. v. McCandless, 255 F.3d 465, 469 (7th

Cir. 2001) (calling a treating physician preference

“irrational,” in part because “[t]reating physicians often

succumb to the temptation to accommodate theirpatients (and

their survivors) at the expense of third parties such as

insurers, which implies attaching a discount rather than a

preference to their views”); Lango v. Dir., OWCP, 14 F.3d

573, 576-77 (3d Cir. 1997) (finding treating physician’s

conclusory statement that coal miner’s pneumoconiosis

hastened his death did not support black lung benefits claim).

As the Fourth Circuit explained:

Neither this circuit nor the Benefits Review Board has

ever fashioned either a requirement or a presumption that

treating or examining physicians' opinions be given

greater weight than opinions of other expert physicians.

We have often stated that as a general matter the opinions

of treating and examining physicians deserve especial

consideration. We stated, for example, in Hubbard v.

Califano, 582 F.2d 319, 323 (4th Cir.1978), that "[we]

place[ ] great reliance on a claimant's treating physician,"

and, citing Hubbard, in King v. Califano, 615 F.2d 1018,

1020 (4th Cir.1980), that "[we] place[ ] great reliance on

the conclusions of a claimant's examining physician." In

neither case, however, did we suggest, much less hold,
No. 01-4064 Eastover Mining Co. v. Williams et al. 19

that the opinions of treating or examining physicians

must be accorded greater weight than opinions of other

physicians. It is, of course, one thing to say that we give

great weight to the treating or examining physician's

opinion; it is quite another to say that as a matter of law

we give greater weight to such an opinion than to

opinions by other physicians. The ALJ therefore was not

required to defer to Dr. Soliva's diagnoses or to accord

them greater weight than the opinions of the other

physicians. 

Grizzle v. Pickands Mather & Co./Chisolm Mines, 994 F.2d

1093, 1097-98 (4th Cir. 1993); see also Island Creek Coal

Co. v. Compton, 211 F.3d 203, 212 (4th Cir. 2000) (“An ALJ

may not discredit a physician’s opinion solely because the

physician did not examine the claimant.”). Thus, most courts

do not afford additional deference to treating physicians. 

The Department of Labor recently promulgated regulations

with respect to the role treating physicians should play in

black lung benefit determinations, but these rules do little

more than explain that sometimes a treating physician may

“have a thorough understanding of a miner’s condition,” but

in other cases, ALJs should not rely on the opinions of

treating physicians. See 20 C.F.R. § 718.104(d)(2002).

Rejecting “automatic acceptance” of the treating physician’s

opinion, the DOL intended the rule “to force a careful and

thorough assessment of the treating relationship.”

Regulations Implementing the Federal Coal Mine and Safety

Act of 1969, as Amended, 65 FED.REG. 79,920, 79,932 (Dec.

20, 2000) [hereinafter Implementing Regulations]. To

effectuate this end, the DOL’s regulation states:

(d) Treating physician. In weighing the medical

evidence of record relevant to whether the miner suffers,

or suffered, from pneumoconiosis, whether the

pneumoconiosis arose out of coal mine employment, and

whether the miner is, or was, totally disabled by

pneumoconiosis or died due to pneumoconiosis, the

20 Eastover Mining Co. v. Williams et al. No. 01-4064

13The regulation did not become effective until December 20, 2000,

so the ALJ did not have its benefit when he made his decision. The BRB,

however, issued the decision presently under review on January 31, 2001.

adjudication officer must give consideration to the

relationship between the miner and any treating

physician whose report is admitted into the record.

Specifically, the adjudication officer shall take into

consideration the following factors in weighing the

opinion of the miner's treating physician:

(1) Nature of relationship. The opinion of a physician

who has treated the miner for respiratory or pulmonary

conditions is entitled to more weight than a physician

who has treated the miner for non-respiratory

conditions;

(2) Duration of relationship. The length of the

treatment relationship demonstrates whether the

physician has observed the miner long enough to

obtain a superior understanding of his or her condition;

(3) Frequency of treatment. The frequency of

physician-patient visits demonstrates whether the

physician has observed the miner often enough to

obtain a superior understanding of his or her condition;

and

(4) Extent of treatment. The types of testing and

examinations conducted during the treatment

relationship demonstrate whether the physician has

obtained superior and relevant information concerning

the miner's condition.13
No. 01-4064 Eastover Mining Co. v. Williams et al. 21

14Contrast the black lung regulation to the Social Security rule that

deals with treating physicians:

Generally, we give more weight to opinions from your treating

sources, since these sources are likely to be the medical

professionals most able to provide a detailed, longitudinal

picture of your medical impairment(s) and may bring a unique

perspective to the medical evidence that cannot be obtained from

the objective medical findings alone or from reports of

individual examinations, such as consultative examinations or

brief hospitalizations. If we find that a treating source's opinion

on the issue(s) of the nature and severity of your impairment(s)

is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in your case record, we will give it

controlling weight.

20 C.F.R. § 404.1527(d)(2). This further exemplifies the relevance of the

distinction the Black & Decker Court drew between ERISA and Social

Security. The Court, in effect, excused the treating physician rule in the

Social Security context because of the above-quoted regulatory mandate.

See Black & Decker, 123 S.Ct. at 1971. The black lung situation,

however, is much more like the ERISA issue before the Black & Decker

Court because no regulation mandates that either plan administrators or

ALJs handling black lung cases give treating physicians deference.

20 C.F.R. § 718.104(d) (2001). The regulation says nothing

about prioritizing a treating physician’s perspective;14 rather,

the regulation expects ALJs to analyze the nature and duration

of the doctor-patient relationship along with the frequency

and extent of treatment. This is similar to the kind of critical

analysis an ALJ should apply when considering any expert

opinion. The DOL further expects ALJs to weigh the report

of a treating physician “against all other relevant evidence in

the record.” Implementing Regulations, 65 FED. REG. at

79,934. 

A simple principle is evident: in black lung litigation, the

opinions of treating physicians get the deference they deserve

based on their power to persuade. Cf. Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944) (affording an administrative

agency pronouncement only the weight it deserved in light of

22 Eastover Mining Co. v. Williams et al. No. 01-4064

15And even the ALJ gave that reader’s opinion “little or no weight”

because Simmons, the reader:

vacillates in his deposition testimony as to whether he believes

the miner had pneumoconiosis. Despite his status as a boardcertified radiologist and a B reader, he was unable to make a

final determination on the existence or non-existence of coal

workers’ pneumoconiosis (CWP), as evidenced by his testimony.

He first states that he read the chest x-ray as positive for CWP,

but then states that his was probably “overreading.”

(J.A. at 32.)

“the thoroughness evident in its consideration, the validity of

its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade”). For instance, a highly qualified treating physician

who has lengthy experience with a miner may deserve

tremendous deference, whereas a treating physician without

the right pulmonary certifications should have his opinions

appropriately discounted. The case law and applicable

regulatory scheme make clear that ALJs must evaluate

treating physicians just as they consider other experts. 

As explained, Respondent may prove her case through

autopsy or biopsy evidence, x-ray evidence, evidence of

complicated medical pneumoconiosis or progressive massive

fibrosis, or reasoned and documented medical opinions. 20

C.F.R. § 718.202(a)(1)-(4). Since Respondent offered no

autopsy or biopsy evidence, we may move directly to

Decedent’s x-rays.

Writing that the “evidence of record does not indicate that

[Respondent] has established the presence of complicated

coal workers’ pneumoconiosis by chest x-ray,” the ALJ

never relied on x-ray evidence. (J.A. at 31.) This is

unsurprising given the paucity of x-ray analyses 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.) Less
No. 01-4064 Eastover Mining Co. v. Williams et al. 23

16Powell and Penman evidently based their conclusions on film taken

on November 26, 1984, and Clarke based his analysis on x-rays taken the

following day. 

qualified x-ray analysts reached myriad results, but the ALJ

permissibly considered the readers’ respective qualifications

and appropriately discounted the opinions of those not fully

qualified. See Staton v. Norfolk & W. Ry., 65 F.3d 55, 59 (6th

Cir. 1995). 

In addition to Woolum’s two letters, the ALJ considered

opinions from eight other physicians. For simplicity, one can

group these eight physicians into two categories: 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, three of the opinions

offered by Respondent’s group (Clarke, Penman and Powell)

have very little significance because they “did not conduct

complete pulmonary evaluations of the miner” and “these

physicians based their opinions on the x-ray evidence, which

I have previously found not sufficient to establish the

existence of CWP [Coal Workers’ Pneumoconiosis].”16 (J.A.

at 32-33.) As we have concluded before, merely restating an

x-ray does not qualify “as a reasoned medical judgment.”

Cornett v. Benham Coal, Inc., 27 F.3d 569, 576 (6th Cir.

2000). Furthermore, 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. Fitts, 39 F.3d 781, 783 (7th Cir.

1994). 

Although still problematic, Wright offered the most

persuasive testimony on Respondent’s behalf. He based his

conclusion partly on a putatively positive x-ray taken on

March 30, 1985, but also on pulmonary function studies

24 Eastover Mining Co. v. Williams et al. No. 01-4064

revealing severe restrictive and obstructive defects and

arterial blood gas studies that indicated substantial

impairments. On this basis, the ALJ gave greater weight to

Wright’s opinion “on the issue of the existence of

pneumoconiosis.” (J.A. at 35.) But Wright’s opinion is

troubling because he only maintains board certifications in

anesthesiology and pain management, neither of which is

germane here. Moreover, Wright testified that

pneumoconiosis was a substantial and contributing factor that

led to the problems detected by the pulmonary function

studies and blood gas tests, but Wright also stated that

cigarette smoking was the predominant cause of Decedent’s

lung disease. Wright testified: 

COUNSEL: Getting right down to the nitty-gritty in

this, Doctor, you don’t think this man’s

very poor pulmonary function is a result of

[medical] pneumoconiosis, do you?

WRIGHT: No.

COUNSEL: What is your opinion as their cause? [sic]

WRIGHT: His chronic obstructive lung disease with

emphysema. 

COUNSEL: And in your opinion, what is the most

probable or predominant cause of that

disease? 

WRIGHT: The predominant cause is probably

cigarette smoking. 

(Dep. 21 at 362.) Even if one understands Wright to mean

that smoking caused most of the problem, but medical

pneumoconiosis still contributed to Wright’s poor pulmonary

condition—that says nothing about the ultimate issue, which

is whether legal pneumoconiosis hastened Decedent’s death.

Recall that the ALJ concluded his discussion of Wright’s
No. 01-4064 Eastover Mining Co. v. Williams et al. 25

testimony by explaining that he gave great weight to Wright’s

opinion “on the issue of the existence of pneumoconiosis.”

(J.A. at 35) (emphasis added). Wright never testified that

pneumoconiosis (legal or medical) hastened Decedent’s

demise.

 The conclusions reached by Petitioner’s group of experts

are somewhat more useful. The ALJ reasonably discounted

Simmons’ contribution because Simmons seemed “equivocal

at best.” (J.A. at 32.) The ALJ also discredited Anderson’s

opinion because he did not do pulmonary function studies on

the miner and only “suspected” smoking caused the COPD.

Sargent’s opinion, however, is more helpful, because Sargent,

board-certified in pulmonary medicine, expressly concluded

that pneumoconiosis did not cause the miner’s death. The

ALJ criticized Sargent’s analysis because Sargent never

examined Decedent and evidently relied on an incomplete

medical file that did not include pulmonary function studies.

Nevertheless, Sargent concluded that

Very clearly, this man died of an acute event

(gastrointestinal bleeding) during the time he was

hospitalized in July 1993. . . . Dr. Woolum thought that

another possibility for cause of death was pulmonary

embolism. . . . Therefore, the cause of death is either

gastrointestinal bleeding or pulmonary embolism, neither

of which have been shown to be caused by

pneumoconiosis or chronic obstructive pulmonary

disease. 

(J.A. at 285.) Again, the ultimate question is not whether

Decedent had medical or legal pneumoconiosis, but whether

legal pneumoconiosis hastened his death. Even assuming,

arguendo, that access to pulmonary function studies would

have caused Sargent to reconsider his opinion that the miner

did not have medical pneumoconiosis, this ancillary point

does not implicate Sargent’s two primary conclusions

articulated in the above-quoted passage: (1) the miner died of

an acute event, probably gastrointestinal bleeding but perhaps

26 Eastover Mining Co. v. Williams et al. No. 01-4064

17When Dahhan first examined Decedent in 1983, Dahhan concluded

that smoking caused Decedent’s pulmonary problems. Likewise, Sargent

explained that Decedent’s blood gases showed severe hypoxemic

hypercapnic respiratory failure on a chronic basis—a finding that

indicates COPD caused by smoking, not pneumoconiosis. 

a pulmonary embolism; and (2) neither pneumoconiosis nor

COPD causes either gastrointestinal bleeding or pulmonary

embolism. Therefore, Sargent concluded that

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 medicine, found no

medical pneumoconiosis. The ALJ’s analysis of Dahhan’s

reasoning is somewhat desultory, but he seems to criticize

Dahhan for “fail[ing] to adequately explain why the miner’s

37 year [mining] history has nothing to do with his lung

condition,” and for neglecting that COPD falls within the

definition of “legal” pneumoconiosis. (J.A. at 34.) It makes

no sense, however, to assume that because Dahhan does not

explain why Decedent’s work as a miner has not caused his

lung impairment, then his work as a miner must have caused

his lung impairment.17 Furthermore, although Dahhan

concluded that the miner had COPD, only COPD caused by

coal dust constitutes legal pneumoconiosis. See 20 C.F.R.

§ 718.201(a)(2). Otherwise, everyone who developed COPD

from smoking would have legal pneumoconiosis. Dahhan

concluded that the miner’s “death was contributed to greatly

by his advanced chronic obstructive lung disease with no

evidence that his death was contributed to or hastened by his

exposure to coal dust or coal worker’s pneumoconiosis.”

(J.A. at 280) (emphasis added.) 

Thus, Dahhan 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 regardless of his
No. 01-4064 Eastover Mining Co. v. Williams et al. 27

18Respondent effectively concedes this. Again, the only relevant

issue is whether legal pneumoconiosis hastened Decedent’s death. In her

brief, Respondent writes:

With respect to the issue of whether pneumoconiosis hastened

[Decedent’s] death, the record contains five (5) sources of

evidence, including: the treatment notes of Dr. Jerry Woolum,

the miner’s treating physician; the death certificate; the

testimony of Petitioner [Decedent’s wife]; the consultative report

of Dr. Dahhan and the consultative report of Dr. Sargent.

(Pet’r Br. at 17.) Notably, Respondent neglects to mention the various

exposure to coal dust or the presence of occupational

pneumoconiosis, 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 evidence without the treating

physician’s opinion, it would be evident that substantial

evidence does not support the ALJ’s conclusion that

Respondent met her burden of proof. Consider the evidence

without Woolum’s input: Respondent offered no biopsy or

autopsy reports. Five of the six fully-qualified x-ray readers

saw no pneumoconiosis, and the sixth (Simmons) was

indecisive. None of the other medical evidence is incredibly

compelling. The dispositive question is whether legal

pneumoconiosis contributed to the miner’s death. Only two

physicians (Sargent and Dahhan), both specialists in

pulmonary medicine, addressed this issue, and both

concluded that coal dust-related disorders (legal

pneumoconiosis) did not hasten Decedent’s death.

In fact, without Woolum’s contribution, Petitioner would

have no argument but to infer that Decedent must have

suffered from legal pneumoconiosis because he worked for

decades as a miner, and since he had legal pneumoconiosis,

it must have contributed to his death. Since this baseless

statement is grossly insufficient, the supportability of the

ALJ’s conclusion depends on Woolum, the treating

physician.18

28 Eastover Mining Co. v. Williams et al. No. 01-4064

tidbits of x-ray and medical evidence that she emphasizes elsewhere. The

death certificate lists the cause of death as a pulmonary embolism, caused

by COPD, itself due to an acute intestinal bleed. COPD qualifies as a type

of legal pneumoconiosis only when caused by coal dust, not an acute

intestinal bleed. Respondent herself has no medical knowledge and an

obvious bias. The ALJ did not rely on her description of Decedent. That

leaves only Sargent and Dahhan, who aid Petitioner’s case, and Woolum,

the treating physician. 

Woolum’s testimony suffers from several serious problems

that render his opinion an inadequate basis for the ALJ’s

conclusion unless his hypothesis receives disproportionately

great weight simply because he worked as Decedent’s treating

physician. Since no such presumption exists, there is no

substantial evidence supporting the ALJ’s conclusion. 

Circumstantial factors strongly indicate that Woolum

changed his original opinion to meet Respondent’s needs. As

summarized above, the original ALJ, Judge Rippey, held a

pre-hearing conference between the parties on February 14,

1995. At that session, ALJ Rippey told Respondent’s counsel

that he found Woolum’s initial letter insufficient to establish

that pneumoconiosis played a role in Decedent’s death.

Woolum’s first analysis stated “that this gentleman was

disabled secondary to his lung disease of which

pneumoconiosis, in my mind, was certainly a contributing

factor.” (J.A. at 72.) Woolum did not claim pneumoconiosis

caused the miner’s death. 

After Respondent’s attorney learned that Woolum’s initial

conclusion would not suffice, Woolum drafted a new letter,

this time reckoning that, “within a reasonable degree of

medical probability,” pneumoconiosis “hastened [Decedent’s]

death.” (Id.) Woolum wrote the first letter on February 24,

1994, but did not write the second memorandum until March

10, 1995—less than a month after the parties met with ALJ

Rippey. Woolum treated Decedent for fourtneen years, but

did not diagnose him with pneumoconiosis until after he

allegedly died from it. 
No. 01-4064 Eastover Mining Co. v. Williams et al. 29

19One could view the ALJ’s decision to credit Woolum’s testimony

despite the surrounding circumstances as a “clearly erroneous” factual

decision, but the ALJ is a judge of credibility and, however awkward the

situation, the ALJ may have believed Woolum always intended to express

his honest belief that legal pneumoconiosis caused the miner’s death.

Even so, the problem with the proceedings below is more legal mistake

that factual error—assuming Woolum’s opinion deserved some weight,

it does not alone constitute substantial evidence in Respondent’s favor

unless the ALJ and the BRB afforded the treating physician’s opinion

much greater significance that its inherent persuasive value warrants. 

This seems like a case in which the treating physician

wanted to help his patient’s family. Despite Woolum’s

almost certainly benevolent intent, the sequence of events

makes his new conclusion dubious.

19

NotwithstandingWoolum’ssignificant credibility problem,

there are other reasons to doubt his conclusion. First, as ALJ

Rippey noted, even in his second letter, Woolum could only

conclude with “a reasonable degree of medical probability”

that pneumoconiosis contributed to the miner’s death, rather

than the usual phrase, “reasonable degree of medical

certainty.” (J.A. at 255-56.) (emphasis added.) It is unclear

what “reasonable degree of medical probability” means. The

more common “reasonable degree of medical certainty”

already reflects the incertitude inherent in medical

conclusions—“certainty” in medicine only means “nearly

sure” relative to the existential sense of the word “certain.”

If a “medical certainty” is a conviction short of complete

certainty, then a “medical probability” must mean something

even less sure.

Second, Woolum attempted to connect the pulmonary

embolism to Decedent’s mining history by surmising that,

although the pulmonary embolus directly caused the miner’s

death, pneumoconiosis hastened his demise because the

miner’s “lack of oxygen [and] his retained carbon dioxide all

played an effect on all parts of his body.” (J.A. at 277.) Put

differently, Woolum argued that because Decedent had

30 Eastover Mining Co. v. Williams et al. No. 01-4064

pneumoconiosis, his body lacked oxygen and excessively

retained carbon dioxide. This weakened the miner, “played

an effect on all parts of his body,” and thereby hastened a

death that would have occurred anyway from the pulmonary

embolus. (Id.) Even if this is an accurate medical conclusion,

it is legally inadequate. 

Again, Petitioner must show that pneumoconiosis

“hasten[e]d the miner’s death.” 20 C.F.R. § 718.205(c)(5).

One can always claim, as Woolum did, that if

pneumoconiosis makes someone weaker, it makes them less

resistant to some other trauma. If, for instance, a miner with

pneumoconiosis gets hit by a train and bleeds to death,

Woolum (or someone adopting his position) would argue that

the pneumoconiosis “hastened” his death because he bled to

death somewhat more quickly than someone without

pneumoconiosis. This is absurd, of course, and presumably

not what Congress meant by “hasten.” Under Woolum’s

interpretation, pneumoconiosis would virtually always

“hasten” death to at least some minimal degree. Legal

pneumoconiosis only “hastens” a death if it does so through

a specifically defined process that reduces the miner’s life by

an estimable time. Woolum’s letter is conclusory and

inadequate because Woolum just asserts that because (in

Woolum’s opinion) the miner had pneumoconiosis, the

disease must have hastened his death. 

Third, the ALJ ignores Woolum’s credentials. Woolum has

no special expertise in reading x-rays, but the ALJ gave

weight to Woolum’s x-ray analysis that he did not give to the

fully-credentialed readers who found no evidence of medical

pneumoconiosis. Woolum has no board certification in

pulmonary medicine, but the ALJ accepted Woolum’s

assertion that a coal dust-related ailment contributed to the

miner’s demise over the opinions of two board-certified

pulmonary specialists who reached the opposite conclusion.

Although the DOL’s new regulations regarding treating

physicians did not take effect until after the ALJ reached his
No. 01-4064 Eastover Mining Co. v. Williams et al. 31

20There is another concerning issue, perhaps only a minor procedural

quirk. To receive benefits as a survivor, Respondent must show at least

that legal pneumoconiosis “hasten[e]d the miner’s death.” 20 C.F.R.

§ 718.205(c)(5). The initial opinion drafted by ALJ Kichuk concluded

that “the miner’s pneumoconiosis was a contributing factor in causing his

death.” In its second remand, the BRB instructed ALJ Kichuk “to

[re]consider whether the existence of pneumoconiosis is established.”

(J.A. at 47.) It seems unlikely and bizarre that the BRB could have meant

for the parties to relitigate the existence of legal pneumoconiosis but not

whether it caused the miner’s death. Put differently, it would be odd for

the BRB to have effectively concluded that “we don’t know whether the

miner had pneumoconiosis, but if he did, it must have contributed to his

death.” On the second remand, the parties litigated both existence and

causation. The ALJ concluded that Respondent met her burden of

establishing the existence of legal pneumoconiosis,” but he never decided

whether he also thought Respondent met her burden of establishing that

legal pneumoconiosis contributed to the miner’s death. Yet, in the third

BRB opinion (affirming the second remand), the BRB concluded that

“[i]nasmuch as the administrative law judge’s determination that claimant

established the existence of pneumoconiosis . . . and death due to

pneumoconiosis . . . is supported by substantial evidence, we affirm the

administrative law judge’s award of survivor’s benefits.” (J.A. at 15)

(emphasis added.) Since the ALJ opinion then under review never

concluded anything about causation, one wonders how the BRB could

affirm the ALJ’s conclusion that “death [was] due to pneumoconiosis.”

(Id.) This may render the BRB’s third order unsupported by substantial

evidence. The easiest solution may be to infer that the ALJ decision

following the second remand indirectly addressed both existence and

causation. 

The whole issue is immaterial because Respondent did not offer any

evidence of causation in the first two administrative hearings that she did

not offer again in the third. And, since the third BRB order is properly

before this Court, all conclusions drawn by that opinion are properly

before us as well. 

decision, they would not alter the outcome of this case.

Under the new regulations, the ALJ must consider a multitude

of factors that, viewed overall, simply ask whether the

treating physician has offered a persuasive opinion. See 20

C.F.R. § 718.104(d). In this case, he did not. To reach his

conclusion, the ALJ had to give preference to the treating

physician. Since that is impermissible, the BRB erred in

affirming the ALJ’s decision.20 

32 Eastover Mining Co. v. Williams et al. No. 01-4064

The confusion, however, does emphasize the need for administrative

bodies to make their opinions clear. 

For all the aforementioned reasons, we REVERSE the

Benefits Review Board.