UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 06-2172

WESTMORELAND COAL COMPANY, INCORPORATED, 

Petitioner, 

v. 

CHARLES M. AMICK; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION 

PROGRAMS, 

Respondents. 

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

(05-1000-BLA) 

Argued: May 15, 2008 Decided: August 18, 2008 

Before WILKINSON and GREGORY, Circuit Judges, and Henry F. 

FLOYD, United States District Judge for the District of South 

Carolina, sitting by designation. 

Affirmed by unpublished opinion. Judge Wilkinson wrote the 

opinion, in which Judge Floyd joined. Judge Gregory wrote a 

dissenting opinion. 

ARGUED: Douglas Allan Smoot, JACKSON & KELLY, PLLC, Charleston, 

West Virginia, for Petitioner. John J. Appelbaum, WASHINGTON & 

LEE UNIVERSITY, School of Law, Lexington, Virginia, for 

Respondents. ON BRIEF: Kathy L. Snyder, JACKSON & KELLY, PLLC, 

Morgantown, West Virginia, for Petitioner. Mary Z. Natkin, 
2 

Renae Patrick, Thomas J. Maas, WASHINGTON & LEE UNIVERSITY, 

School of Law, Lexington, Virginia, for Respondent Charles M. 

Amick. Jonathan L. Snare, Acting Solicitor of Labor, Rae Ellen 

Frank James, Deputy Associate Solicitor, Patricia M. Nece, 

Counsel for Appellate Litigation, Richard A. Seid, Senior 

Attorney, UNITED STATES DEPARTMENT OF LABOR, Office of the 

Solicitor, Washington, D.C., for Federal Respondent. 

Unpublished opinions are not binding precedent in this circuit. 
3 

WILKINSON, Circuit Judge: 

Westmoreland Coal Company (“Westmoreland”), for the second 

time, petitions for review of a decision and order of the 

Department of Labor’s Benefits Review Board (“BRB”) affirming 

the Administrative Law Judge’s (“ALJ”) award of black lung 

benefits to Charles Moore Amick, now deceased. In our prior 

consideration of this case, we affirmed all findings of the ALJ 

except those related to the crediting and discrediting of 

various medical opinions, and we remanded to the ALJ for 

reconsideration of the medical opinion evidence. On appeal, 

Westmoreland again contends that the award of benefits to Mr. 

Amick must be set aside because the ALJ’s decision to give more 

weight to the opinions of Mr. Amick’s doctors and less weight to 

those of Westmoreland’s doctors was irrational and unsupported 

by substantial evidence. Because the decision to award benefits 

to Mr. Amick is supported by substantial evidence, we affirm the 

order of the BRB. 

I. 

A. 

The Black Lung Benefits Act (“BLBA”) provides benefits to 

coal miners who are totally disabled because of pneumoconiosis, 

also known as black lung disease, and to the surviving 
4 

dependents of coal miners who have died from the disease. 30 

U.S.C. § 901(a) (2000); Mullins Coal Co. v. Dir., OWCP, 484 U.S. 

135, 138 (1987). A coal miner or his surviving dependent may 

seek benefits under the BLBA by filing a claim with the District 

Director in the Department of Labor’s Office of Workers’ 

Compensation Programs, who determines whether a particular 

claimant is eligible for benefits and which employer will be 

responsible for those benefits. See 20 C.F.R. §§ 725.301-

725.423 (2007). After the District Director makes a 

determination about benefits, either party may appeal and 

request a hearing before an ALJ. Id. §§ 725.450-725.480. The 

ALJ’s decision is appealable to the BRB, id. § 725.481, and then 

to the court of appeals for the circuit in which the respiratory 

impairment occurred. 33 U.S.C. § 921(c) (2000); 20 C.F.R. 

§ 725.482. 

The BLBA defines 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) (2000). As of January 2001, 20 C.F.R. 

§ 718.201(c) made clear the long-held understanding by the 

courts of appeals that pneumoconiosis is a “latent and 

progressive disease which may first become detectable only after 

the cessation of coal mine dust exposure.” See, e.g., Mullins 
5 

Coal Co., 484 U.S. at 151; LaBelle Processing Co. v. Swarrow, 72 

F.3d 308, 314 (3d Cir. 1995); Lovilla Coal Co. v. Harvey, 109 

F.3d 445, 450 (8th Cir. 1997); Orange v. Island Creek Coal Co., 

786 F.2d 724, 727 (6th Cir. 1986); Consolid. Coal Co. v. Chubb, 

741 F.2d 967, 973 (7th Cir. 1984). 

As of January 2001, federal regulations also made clear 

what courts had long recognized, namely, that pneumoconiosis as 

defined by the BLBA has both a “clinical” and a “legal” 

manifestation. 20 C.F.R. § 718.201(a)(1)-(2); see, e.g., Nat’l 

Mining Ass’n v. Dep’t. of Labor, 292 F.3d 849, 869 (D.C. Cir. 

2002) (noting that the distinction between clinical and legal 

pneumoconiosis is recognized by all the circuits that considered 

the issue); Gulf and Western Industries v. Ling, 176 F.3d 226, 

231-32 (4th Cir. 1999). Clinical pneumoconiosis, also known as 

“medical pneumoconiosis,” is “characterized by permanent 

deposition of substantial amounts of particulate matter in the 

lungs and the fibrotic reaction of the lung tissue to that 

deposition caused by dust exposure in coal mine employment.” 20 

C.F.R. § 718.201(a)(1). Legal pneumoconiosis is defined much 

more broadly, and includes “any chronic lung disease or 

impairment and its sequelae arising out of coal mine 

employment.” Id. § 718.201(a)(2). 
6 

B. 

Charles Moore Amick, now deceased, worked as a coal miner 

for thirty-three years. From 1946 until 1962, Mr. Amick worked 

in strip mining, and from 1962 until he retired in 1983, he 

worked underground. During those years, he performed numerous 

jobs: truck driver, mechanic, electrician, bulldozer operator, 

timberman, cutting machine operator, and scoop operator. During 

his last eleven years as a coal mine employee, Mr. Amick ran a 

supply motor, which required him to load and unload roof bolts, 

timbers, and other supplies. Mr. Amick also had smoked roughly 

one pack of cigarettes each day from 1941 until around 1988. 

In December of 1980, Mr. Amick filed a claim for black lung 

benefits, which the District Director denied in July of 1981. 

Mr. Amick applied again in April 1983, and the District Director 

denied his claim in May of 1984. Mr. Amick applied for benefits 

a third time in March of 2000, and this time the District 

Director awarded benefits. On appeal to the ALJ, the award was 

affirmed, on the grounds that Mr. Amick had proven the existence 

of total disability due to pneumoconiosis. 

In affirming the District Director’s award of benefits, the 

ALJ considered the opinions of numerous physicians, all of whom 

agreed that Mr. Amick had a chronic obstructive pulmonary 

disease (COPD) which rendered him “totally disabled” as defined 
7 

by federal regulations. See 20 C.F.R. § 718.204(b)(1). The 

doctors disagreed, however, as to the cause of Mr. Amick’s 

impairment. Mr. Amick’s doctors -- Drs. Cohen and Koenig, as 

well as a doctor for the Department of Labor, Dr. Rasmussen -- 

found that his COPD was due, at least in part, to exposure to 

coal mine dust during his coal mine employment. Westmoreland’s 

doctors -- Drs. Zaldivar, Stewart, Castle, Spagnolo, and Morgan, 

as well as a doctor for the Department of Labor, Dr. Daniel -- 

all opined that Mr. Amick’s impairment was the result of his 

long-time smoking habit. 

The ALJ found the opinions of Mr. Amick’s doctors more 

persuasive than those of Westmoreland’s physicians, and thus 

awarded benefits to Mr. Amick. The BRB affirmed the ALJ’s 

decision. Amick v. Westmoreland Coal Co., BRB No. 03-0256 BLA 

(Jan. 21, 2004). On appeal, this court affirmed the BRB’s 

holdings that one, Mr. Amick’s claim was timely filed, that two, 

the ALJ did not err in applying amended portions of 20 C.F.R. §§ 

718 and 725 to Mr. Amick’s claims, and that three, the ALJ 

applied the correct test to determine whether Mr. Amick had 

established a material change in condition. Westmoreland Coal 

Co. v. Amick, 123 Fed. Appx. 525, 527-530 (4th Cir. 2004). 

However, this court vacated the award of black lung 

benefits to Mr. Amick and remanded the case for further 
8 

consideration on the grounds that, although the BRB’s 

conclusions regarding the credibility of the doctors “might be 

supported by substantial evidence,” the reasons given by the ALJ 

for discrediting Westmoreland’s doctors were not supported by 

substantial evidence in the record.1

 Id. at 533. 

On remand, the ALJ again awarded benefits to Mr. Amick. In 

that opinion, the ALJ noted that the opinions of Drs. Zaldivar, 

Stewart, Castle, Spagnolo, Cohen, and Koenig were entitled to 

the most deference because those physicians were board-certified 

in pulmonary disease. Again, though, the ALJ found the opinions 

of Drs. Cohen and Koenig more persuasive than those of the other 

physicians, noting that those opinions -- unlike those of 

Westmoreland’s doctors -- discussed the latent and progressive 

nature of pneumoconiosis, were well supported by medical 

literature most consistent with the findings of the Department 

of Labor regarding the nature of pneumoconiosis, and took into 

 1

In particular, this court noted that, contrary to the ALJ’s 

findings otherwise, Drs. Zaldivar, Stewart, and Castle had 

indeed found that Mr. Amick’s COPD was unrelated to his coal 

mining employment, and Drs. Zaldivar, Stewart, Castle, and 

Spagnolo had in fact addressed legal pneumoconiosis in their 

opinions. Amick, 123 Fed. Appx. at 532-33. Further, we held 

that Westmoreland’s physicians were not, as the ALJ had 

suggested, required to consider medical literature presented by 

Dr. Koenig. Finally, we noted that Dr. Morgan’s opinion did not 

contradict the BLBA, and thus the ALJ erred in discrediting it 

for that reason alone. Id. at 532-33. 
9 

account the possible effects of both cigarette smoking and coal 

mine dust exposure on Mr. Amick’s condition. The BRB affirmed, 

noting that the ALJ had followed this court’s directives on 

remand and had properly exercised his discretion in determining 

which medical opinions were most persuasive. 

Westmoreland timely appeals. 

II. 

Westmoreland attacks the ALJ’s reasons for awarding 

benefits to Mr. Amick as irrational and unsupported by 

substantial evidence. We must affirm the decision of the BRB if 

it properly determined that the ALJ’s findings were supported by 

substantial evidence in the record considered as a whole. See, 

e.g., Doss v. Dir., OWCP, 53 F.3d 654, 658 (4th Cir. 1995). In 

so doing, we bear in mind that it is the role of the ALJ -- who 

has familiarity with this field -- to make factual findings, to 

evaluate the credibility of witnesses, and to weigh conflicting 

evidence. Id. Moreover, we note that “a reviewing body may not 

set aside an inference merely because it finds the opposite 

conclusion more reasonable or because it questions the factual 

basis.” Id. at 659. Guided by these principles, we turn to 

Westmoreland’s specific claims. 
10 

A. 

Westmoreland first contends that the ALJ’s decision to 

credit the opinions of Drs. Cohen and Koenig was irrational and 

unsupported by substantial evidence. Contrary to Westmoreland’s 

argument, however, the evidence in the record supporting the 

ALJ’s conclusions is sufficiently substantial “as a reasonable 

mind might accept as adequate to support” the ALJ’s decision. 

See Richardson v. Perales, 402 U.S. 389, 401 (1971); see also 5 

U.S.C. § 557(c)(3)(A) (requiring an ALJ to provide an adequate 

explanation for his findings and conclusions). In particular, 

the ALJ first noted that both Drs. Cohen and Koenig, unlike 

Westmoreland’s physicians, recognized and discussed the latent 

and progressive nature of pneumoconiosis. For example, as the 

BRB pointed out, both Drs. Koenig and Cohen considered the 

relationship between the progressive nature of Mr. Amick’s 

disability (as shown by Mr. Amick’s worsening pulmonary function 

test results from 1983 to 2001, his worsening diffusion 

impairment from 1991 to 2001, and his worsening hypoxemia at 

rest) and the progressive nature of legal and clinical 

pneumoconiosis. 

The ALJ also explained that the opinions of Drs. Cohen and 

Koenig included a thorough discussion of (and were well 

supported by) medical literature that was consistent with the 
11 

Department of Labor’s findings that pneumoconiosis is a latent 

and progressive disease, and that an obstructive impairment may 

be “legal pneumoconiosis.” In fact, Dr. Koenig’s conclusions 

were supported by forty-two published, peer-reviewed articles. 

Finally, the ALJ credited the opinions of Drs. Cohen and Koenig 

because, in contrast with the opinions of Westmoreland’s 

doctors, they both specifically and clearly addressed the 

possible contribution of both cigarette smoke and coal dust to 

Mr. Amick’s disability. See Peerless Eagle Coal Co. v. Taylor, 

107 F.3d 867, 867 (Table) (4th Cir. 1997) (approving the ALJ’s 

decision to discredit a physician for failing to explain his 

conclusions “that smoking was the sole cause of the miner’s 

breathing impairment . . . and that coal dust exposure played no 

role at all.”) As Dr. Koenig’s report explained, the importance 

of considering both possible contributing factors is highlighted 

by the findings of numerous medical studies, which indicate that 

the symptoms, pulmonary function tests, and chest x-ray 

appearance of COPD are identical regardless of whether the COPD 

is caused by coal dust, cigarette smoke, or both. 

Nonetheless, Westmoreland contends that the ALJ’s reasons 

for crediting the opinions of these two doctors were invalid. 

To begin, Westmoreland argues that the black lung regulations do 

not demand that physicians discuss the latent and progressive 
12 

nature of pneumoconiosis, and thus, the ALJ’s decision to credit 

the opinions of Drs. Cohen and Koenig for doing so was error. 

While true that the regulations do not impose such a 

requirement, considering that both the black lung regulations as 

well as numerous, long-standing decisions of the courts of 

appeals recognize the progressivity of pneumoconiosis, the ALJ 

was not precluded from considering as more persuasive the 

opinions of those doctors who took that characteristic of 

pneumoconiosis into account. This is especially true in this 

case, given that the worsening of Mr. Amick’s symptoms did not 

occur until eight years after he retired from his coal mining 

employment. 

Westmoreland also insists that Drs. Cohen and Koenig’s 

thorough discussion of medical literature cannot provide a basis 

for the ALJ’s decision to credit his opinion, because the ALJ 

failed to “resolv[e] the conflicts” between the literature cited 

by Drs. Cohen and Koenig and that cited by Drs. Zaldivar and 

Morgan. However, as the ALJ recognized, and as the BRB 

explained in detail, the Department of Labor already reviewed 

the medical and scientific literature before promulgating its 

revised regulations. See generally 65 Fed. Reg. 79,937-51 (Dec. 

20, 2000). The ALJ’s decision to credit Drs. Cohen and Koenig 

for their thorough discussion of the medical literature was 
13 

therefore valid, in that it was, as the ALJ and BRB made clear, 

more consistent with the Department of Labor’s findings that 

pneumoconiosis is latent and progressive and that an obstructive 

impairment may be “legal pneumoconiosis.” 20 C.F.R. 

§ 718.201(a)(2), (c). 

B. 

Westmoreland next contends that the ALJ’s decision to 

discredit Westmoreland’s doctors was irrational and unsupported 

by substantial evidence. Again, however, the ALJ’s decision to 

afford less weight to the opinions of Westmoreland’s doctors is 

amply supported by evidence in the record. Regarding Dr. 

Zaldivar specifically, the ALJ found his opinion less persuasive 

because he made contradictory statements about the relevance of 

x-ray evidence in diagnosing pneumoconiosis. For example, Dr. 

Zaldivar acknowledged that a positive chest x-ray finding was 

not needed for a diagnosis of coal workers’ pneumoconiosis, yet 

he also stated that “[t]he x-ray is absolutely necessary to 

determine that the exposure has been high enough for [Mr. Amick] 

to inhale and to retain the dust.” See Midland Coal Co. v. 

Dir., OWCP, 358 F.3d 486, 492 (7th Cir. 2004) (approving a 

similar ALJ finding on the grounds that requiring x-ray evidence 

of pneumoconiosis is contrary to the BLBA). 
14 

Moreover, regarding Drs. Daniel, Castle, Spagnolo, Stewart, 

and Morgan, the ALJ found their opinions less persuasive because 

none of them took into account the latent and progressive nature 

of pneumoconiosis. For example, Dr. Castle concluded that Mr. 

Amick’s impairment could not have been caused by coal dust 

exposure because Mr. Amick stopped working in 1983 and the 

deterioration of his condition began in 1991. Similarly, Dr. 

Stewart cited Mr. Amick’s deterioration after 1991 as a basis 

for attributing his COPD solely to cigarette smoking. These 

findings, as both the ALJ and the BRB pointed out, ignore the 

fact that pneumoconiosis is a latent and progressive disease. 

See, e.g., Roberts & Schaefer Co. v. Dir., OWCP, 400 F.3d 992, 

999 (7th Cir. 2005) (holding that it is appropriate for an ALJ 

to give less weight to a physician’s opinion when it lacked 

consideration of the latent and progressive nature of 

pneumoconiosis); Sea “B” Mining Co. v. Dunford, 188 Fed. Appx. 

191, 199 (4th Cir. 2006) (same); Four L Coal Co. v. Dir., OWCP, 

157 Fed. Appx. 551, 555 (4th Cir. 2005) (same); see also Lewis 

Coal Co. v. Dir., OWCP, 373 F.3d 570, 580 (4th Cir. 2004) 

(“Little weight can be given to medical findings that conflict 

with the BLBA’s implementing regulations,” including the finding 

that pneumoconiosis is a “progressive disease.”). 
15 

Finally, the ALJ found the opinions of all of 

Westmoreland’s doctors less persuasive than those of Drs. Cohen 

and Koenig because they failed to take into account both 

cigarette smoking and coal mine dust exposure as potential 

causes of Mr. Amick’s COPD. In particular, the ALJ discredited 

the opinions of Drs. Daniel, Castle, Spagnolo, and Stewart for 

failing to explain why no part of Mr. Amick’s disability was due 

to thirty-three years of coal dust exposure. See Island Creek 

Coal Co. v. Compton, 211 F.3d 203, 213 (4th Cir. 2000) 

(approving as valid a similar ALJ finding). Relatedly, the ALJ 

explained that the opinions of Drs. Daniel, Morgan, and Zaldivar 

relied on little more than negative x-ray findings to support 

their conclusion that Mr. Amick’s impairment was solely the 

result of cigarette smoking. See 30 U.S.C. § 923(b). (“[N]o 

claim for benefits . . . shall be denied solely on the basis of 

the results of a chest roentgenogram.”) 

Westmoreland, however, mounts three primary challenges to 

the ALJ’s explanations for discrediting the opinions of these 

doctors. First, Westmoreland contends that the ALJ erred by 

“trying to manufacture conflicts in Dr. Zaldivar’s testimony” 

regarding the necessity of a positive chest x-ray. As the BRB 

recognized, however, there is ample support in the record 

showing that at times Dr. Zaldivar indicated that a chest x-ray 
16 

was not needed to establish the existence of pneumoconiosis, and 

at others he indicated that a positive chest x-ray was required. 

Amick, BRB No. 05-1000 BLA at 4-5 (citing various portions of 

the record). 

Westmoreland also contends that the ALJ erred in 

discrediting the opinions of Drs. Daniel, Castle, Spagnolo, 

Stewart, and Morgan for not discussing the latent and 

progressive nature of pneumoconiosis. However, we already 

discussed above that the ALJ may consider medical opinions less 

persuasive if they do not discuss the progressivity of 

pneumoconiosis. Further, we reject Westmoreland’s additional 

argument that the ALJ’s decision to discredit these physicians 

for not discussing pneumoconiosis’s progressivity constituted an 

impermissible retroactive application of 20 C.F.R. § 718.201(c). 

Westmoreland has already challenged the application of the 

revised 20 C.F.R. §§ 718 and 725 to Mr. Amick’s claim, and in 

our 2004 decision, we held that the ALJ did not err in applying 

the amended regulations to that claim. Amick, 123 Fed. Appx. at 

530. That decision is the “law of the case,” and we thus 

decline to revisit Westmoreland’s challenge to the application 

of 20 C.F.R. § 718.201 here. See Arizona v. California, 460 

U.S. 605, 618 (1983). 
17 

Finally, Westmoreland argues that the ALJ impermissibly 

shifted the burden of proof to Westmoreland’s doctors by 

requiring them to “rule out” coal dust exposure as a cause of 

Mr. Amick’s COPD. Westmoreland is of course correct that the 

claimant has the burden of proving every element of entitlement 

to benefits under the BLBA. See 5 U.S.C. § 556(d); Dir., OWCP 

v. Greenwich Colleries, 512 U.S. 267, 280-81 (1994). However, 

nothing about the ALJ’s decision to discredit Westmoreland’s 

doctors for not discussing coal dust as a potential contributing 

cause of Mr. Amick’s COPD relieved Drs. Cohen and Koenig of 

their burden to prove every element of Mr. Amick’s claim for 

benefits. And as discussed above, Drs. Cohen and Koenig 

supported their conclusions that Mr. Amick’s totally disabling 

impairment was due, at least in part, to thirty-three years of 

coal mine dust exposure. Nevertheless, even if such burden 

shifting occurred, the ALJ’s error was harmless here because, as 

discussed, the ALJ provided numerous other valid reasons for 

giving less weight to the opinions of Westmoreland’s doctors.2

 

 2

Westmoreland also argues that the ALJ erred in discrediting 

Drs. Zaldivar and Daniel on the grounds that they supported 

their conclusions regarding the cause of Mr. Amick’s COPD with 

little other than x-ray evidence. Specifically, Westmoreland 

contends that this finding is factually inaccurate, because Drs. 

Zaldivar and Daniel also cited Mr. Amick’s response to 

bronchodilator treatment to bolster their conclusions. The BRB 

rejected this argument on the grounds that bronchodilator 
18 

Westmoreland sets forth additional challenges to the ALJ’s 

determinations regarding the credibility of the physicians, all 

of which we have reviewed with care and find lack merit. In 

essence, this case required the ALJ to weigh the credibility of 

various opinions from a number of highly qualified doctors. In 

so doing, the ALJ chose which opinions he found most credible, 

and he provided an adequate and reasonable explanation for his 

choice. See 5 U.S.C. § 557(c)(3)(A). It is not our job to 

serve as a “super ALJ” and re-weigh all of the evidence, as 

Westmoreland essentially urges, in order to reach a contrary 

result. 

For the foregoing reasons, the order of the BRB is 

affirmed. 

AFFIRMED 

treatment response is unrelated to the potential causes of Mr. 

Amick’s COPD. Amick, BRB No. 05-1000 BLA at 10. Nevertheless, 

even if, as Westmoreland contends, the BRB’s rejection of this 

argument constituted a medical conclusion that lacks support in 

the record, the ALJ articulated numerous other valid reasons for 

discrediting the opinions of Drs. Zaldivar and Daniel. 
19

GREGORY, Circuit Judge, dissenting: 

The regulation defining pneumoconiosis does not require a 

physician to discuss the Alatent and progressive@ nature of 

pneumoconiosis. See 20 C.F.R. ' 718.201. Since the 

Administrative Law Judge (AALJ@) incorrectly discredited 

Westmoreland=s physicians for their failure to do so, and 

committed several factual errors1

, I am compelled to dissent. 

The parties agree that Amick suffers from chronic 

obstructive pulmonary disease (ACOPD@) that is totally disabling. 

Their dispute is limited to whether Amick=s COPD is caused by 

coal mine dust, smoking, or a combination of both. The 

employer=s doctors - Drs. Zaldivar, Stewart, Castle, Daniel, 

Spagnolo, and Morgan - uniformly opine that Amick=s habit of 

smoking approximately one pack of cigarettes per day for nearly 

forty years was the cause of his COPD. Each of Westmoreland=s 

doctors provided significant testimony detailing the rationale 

for their decisions, yet the ALJ discounted all of the doctors=

conclusions, in part, because they did not address the latency 

or progressiveness of pneumoconiosis.2

 For example, the ALJ 

 1

Judge Smith=s opinion concurring and dissenting from the 

the Benefits Review Board=s (ABRB@) decision sets out some of 

these factual errors. (See J.A. 694-697.) 

2

While many of the doctors did not explicitly address this 

issue, Dr. Zaldivar did so. Indeed, the Benefits Review Board 

(ABRB@) quoted the very portion of Dr. Zaldivar=s trial testimony 
20

dismissed Dr. Spagnolo=s opinion because he Adid not discuss the 

progressive and latent nature of coal mine dust exposure.@ (J.A. 

674.) The majority affirmed the ALJ=s reliance on this Aomission@

to devalue the testimony of Westmoreland=s doctors, but it does 

not cite to any direct precedent in support. The cases cited by 

the majority stand for the unassailable proposition that a 

doctor cannot base his opinion on the Aflawed premise that a 

miner with no apparent pulmonary impairment upon leaving the 

coal mines could never thereafter develop a coal dust related 

impairment.@ Four L Coal Co. v. Dir., OWCP, 157 Fed. Appx. 551, 

555 (4th Cir. 2005). However, in the instant case, only Dr. 

Castle, in my view committed this error. The testimony and 

findings of Westmoreland=s remaining physicians did not indicate 

that any of them disagreed with the fact that pneumoconiosis is 

a latent and progressive disease. 

Indeed, as the majority correctly points out, § 718.201(c) 

Amade clear the long-held understanding by the courts of appeals 

that pneumoconiosis is a >latent and progressive disease.=@ (Maj. 

Op. 4.) Beyond the court of appeals, both the Secretary of Labor 

and the National Institute of Occupational Health and Safety 

concurred that § 781.201(c) codified the widely accepted 

in which he specifically addressed the progressiveness of 

pneumoconiosis. (J.A. 686, n.3.) 
21

scientific view regarding the latency and progressiveness of 

pneumoconiosis. The very structure of the Black Lung Benefits 

Act (ABLBA@) implicitly recognizes the latency and 

progressiveness of pneumoconiosis by allowing miners to refile 

their previously unsuccessful claims if their medical condition 

has changed. 

The sole question that doctors must address in evaluating a 

coal miner=s eligibility for black lung benefits under the BLBA 

is whether the claimant, at the time of the exam, has clinical 

or legal pneumoconiosis. Neither the literal terms of the 

relevant regulations nor any case law provide that an employer=s 

doctors must discuss the latency or progressiveness of 

pneumoconiosis presumably because § 718.201(c) explicitly 

provides that this is the case. 

While there may be substantial evidence to support awarding 

Amick benefits, I would remand this case to the ALJ for further 

consideration in light of this legal error and for the reasons 

set forth in Judge Smith’s opinion. As such, I respectfully 

dissent.