UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CONSOLIDATION COAL COMPANY, 

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’  No. 98-1533

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

BILLY E. WASSON,

Respondents. 

On Petition for Review of an Order of the

Benefits Review Board.

(97-801-BLA)

Argued: March 1, 1999

Decided: November 13, 2001

Before WIDENER and LUTTIG, Circuit Judges, and

Richard L. VOORHEES, United States District Judge

for the Western District of North Carolina,

sitting by designation.

Petition denied by unpublished per curiam opinion. 

COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY, Morgantown, West Virginia, for Petitioner. Frederick Klein Muth, HENSLEY, MUTH, GARTON & HAYES, Bluefield, West Virginia, for

Respondents. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Consolidation Coal Company petitions for review of an award of

benefits to the claimant, Billy Wasson, under the Black Lung Act, 30

U.S.C. § 901 et seq. We affirm. We note that the Director of Workers’

Compensation Programs supported the claimant’s position before the

Board. 

I

Having worked for 22 years in the coal mines and about 30 years

in the industry, Wasson first applied for black lung disability benefits

in April 1992. The Administrative Law Judge (ALJ) awarded benefits

in February 1994 under §§ 20 C.F.R. § 718.202(a)(1) (x-ray evidence

of pneumoconiosis) and (a)(4) (pneumoconiosis established by medical opinion). On review, the Benefits Review Board (the Board)

vacated the award upon determining that the ALJ had improperly

weighed physicians’ opinions and because the ALJ had applied the

true doubt rule to resolve conflicting x-ray evidence which rule had

been in the interim abrogated by Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). The Board vacated the ALJ’s findings

regarding causation of disability because the ALJ failed to consider

Sixth Circuit law rather than that of this Circuit as well as the findings

regarding exertional levels required to perform Wasson’s usual job

because the ALJ failed to consider or weigh contrary probative evidence. The Board affirmed the ALJ’s findings that the claimant had

established total respiratory disability by pulmonary function tests as

provided in 20 C.F.R. § 718.204(c)(1) as this was not challenged on

appeal. 

On remand, the ALJ again found the x-ray evidence to be equally

probative but concluded that without the benefit of the true doubt rule

the claimant could not establish existence of pneumoconiosis by x-ray

2 CONSOLIDATION COAL CO. v. DIRECTOR OWCP
under § 718.202(a)(1). However, on reconsideration of the medical

opinions, the ALJ found that the claimant had met his burden of

establishing coal worker’s pneumoconiosis under § 718.202(a)(4)

based on the medical report and the deposition of Dr. Rasmussen

which together constituted a reasoned medical opinion. The ALJ also

found that the claimant’s total respiratory disability was caused in part

by pneumoconiosis under the law of the Sixth Circuit as well as the

Fourth Circuit. The ALJ awarded benefits a second time, the Benefits

Review Board affirmed the award, and the employer has filed its petition for review. 

II

Applying the same standard as the Benefits Review Board, we

review questions of law de novo while findings of fact are conclusive

and must be affirmed if supported by substantial evidence in the

record considered as a whole. Thorn v. Itmann Coal Co., 3 F.3d 713,

718 (4th Cir. 1993); 33 U.S.C. § 921(b)(3), as incorporated by 30

U.S.C. § 932(a). Substantial evidence is sufficient relevant evidence

that a reasonable mind might accept as adequate to support the conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

Consolidation first asserts that the ALJ erred in using standardized

reference values found in the American Medical Association’s Guides

to the Evaluation of Permanent Impairment (AMA guides) to conclude that the result of the claimant’s 1991 single breath diffusing

capacity (DLCO)* study was abnormal. The DLCO test in question

was obtained by Dr. Bercher and the actual test result of 19 was

reported by Dr. Bercher to be 84% of a predicted value of 23.

Although the claimant’s actual test measurement of 19 was lower than

his 28.1 measurement in a DLCO test obtained by Dr. Rasmussen in

1989, Dr. Bercher concluded that because the claimant’s diffusing

capacity was calculated to be 84% in both the 1989 and 1991 tests,

the claimant’s diffusing capacity remained unchanged and within normal limits. Dr. Rasmussen pointed out on deposition, however, that

in the 1989 test, the laboratory used a higher predicted value of 33.4

to calculate the claimant’s diffusing capacity of 84% (28.1 divided by

*DLCO is medical shorthand for carbon monoxide diffusing capacity

of the lungs. 

CONSOLIDATION COAL CO. v. DIRECTOR OWCP 3
33.4 = 84%). Dr. Rasmussen questioned the lower predicted value

used by Dr. Bercher’s laboratory in the 1991 test, stating that he

believed that the claimant’s diffusing capacity on that test would be

abnormal if a higher predicted value was used. Thus a controversy

arose as to whether the claimant’s actual performance on the 1991 test

was within normal or abnormal range, i.e., whether the lower predicted value was in fact the appropriate or correct value against which

to measure the claimant’s test result. 

The Board found that the parties were properly notified in advance

that the ALJ would look to the AMA guides to resolve the conflict

in the expert opinions with respect to whether the claimant’s test

result was normal or abnormal and that the parties were given an

opportunity to respond as required under 29 C.F.R. § 18.45. The

Board concluded that neither the employer nor the testing physician,

Dr. Bercher, had demonstrated any unfairness or inaccuracy in the

AMA guides, and thus the ALJ permissibly relied upon this neutral

third source to resolve the conflict in the expert opinions. 

The employer objects to the ALJ’s use of the AMA guides and

points to the statements in the record of Dr. Bercher, Dr. Castle, and

Dr. Chillag that differences in equipment, variations in technique, altitude, and the population lead to inter-laboratory differences. These

physicians stated generally that such differences make it inappropriate

to use the predicted values in the AMA guides. 

The AMA guides at issue provide reference (predicted) values for

population based average results of single breath diffusing capacity

testing. The guide takes into account the population based differences

noted by the above physicians of sex, age, and height. Further, the

AMA guides state that the values in the guides should be used when

the DLCO test is performed under the particular laboratory conditions

and following the procedures that are specified within the guide by

the American Thoracic Society. The guide states that if the testing

laboratory does not follow the conditions and procedures set forth by

the American Thoracic Society, that laboratory should either develop

and verify its own predicted equations or use an accepted and verified

equation. 

We agree with the Board that the employer had adequate notice yet

offered no specific evidence to show that the use of the AMA guide

4 CONSOLIDATION COAL CO. v. DIRECTOR OWCP
was unfair or inaccurate when applied to the case at hand. The evidence offered by the employer consisted of statements that, in general, the selected predicted value depends on such population based

factors of age, sex, height as well as varying laboratory conditions

and techniques which would make it is necessary for the laboratory

to establish its own predicted values. These general statements are not

contradicted by the claimant and are supported by the AMA guides.

However, the record shows that the population based factors of sex,

age, and height are accounted for in the AMA reference values, and

neither Dr. Bercher nor the other physicians assert otherwise. Indeed

it appears that the purpose of the AMA guides was to standardize the

test as much as possible in order to prevent unfairness to claimants

caused by population based and laboratory variables. While the

employer has offered evidence to support that the reference values in

the AMA guides may not be appropriate to use in every case, it fails

to point us to specific evidence in the record of why they should not

be used in this case. We thus find no error in the decision of the Board

on this issue.

The employer next asserts that the record lacks substantial evidence to support the ALJ’s findings and that the ALJ’s weighing of

the various expert opinions was partial and irrational. The ALJ

accorded greater weight to the opinion of Dr. Rasmussen because he

found it to be a reasoned opinion supported by objective tests, medical history and physical examination. On review of the record, we

agree with the Board that there is substantial evidence to support the

ALJ’s decision which was neither partial nor irrational. 

In his practice of pulmonary medicine, Dr. Rasmussen had examined some 24,000 to 25,000 coal miners, and the employer conceded

on the record that he is an expert in his field. Dr. Rasmussen’s opinion is supported by objective tests including chest x-ray showing the

presence of pneumoconiosis, electrocardiogram, spirometry lung volumes, diffusing capacity studies, resting and exercise blood gas

studies, physical examination, and appropriate consideration of the

claimant’s medical history and work history. Dr. Rasmussen stated

that based on his examination and these tests, the claimant had a moderately severe degree of pulmonary impairment sufficient to render

him totally disabled for performing his previous coal mine work.

Based on his own studies and those of Dr. Bercher which he

CONSOLIDATION COAL CO. v. DIRECTOR OWCP 5
reviewed, Dr. Rasmussen described the claimant’s pulmonary impairment as having both obstructive and restrictive components, the

restrictive impairment shown by significant impairment in gas

exchange during exercise, which was significantly out of proportion

to his airway obstruction. With respect to the effect of the claimant’s

cigarette smoking, Dr. Rasmussen stated that principally the effect of

cigarette smoking is to produce airway obstruction and increased lung

volumes, and that Dr. Bercher’s study (showing decreased lung volume) clearly showed a "restrictive type disease which would not be

typically the consequence of cigarette smoking since cigarette smoking would generally produce emphysema which would result in an

increase in lung volume." Dr. Rasmussen also opined that "[c]oal dust

is fully capable of producing emphysema and also concomitantly

interstitial pulmonary fibrosis, so that you have a combination of both

in an individual." Dr. Rasmussen further stated that "[m]ore often

than not, coal miners have an excessive emphysema in contrast to an

excessive interstitial fibrosis." Dr. Rasmussen agreed with the

employer’s experts that the claimant’s 54 pack year smoking history

was significant and sufficient to cause obstructive lung disease

(emphysema) in a susceptible individual and that cigarette smoking

is the primary cause of emphysema and obstructive lung disease in

America. However, it was his opinion, based on all the evidence in

this case, that the claimant did have evidence of restrictive disease

and that his impaired pulmonary function was caused by a combination of his occupational pneumoconiosis from some 31 years of working in coal mines and some 27 years of two pack per day (54 pack

year) cigarette smoking. 

The Board found that on remand the ALJ considered all the relevant evidence and properly discredited or gave less weight to the

opinions of the other physicians as follows. Dr. Vasudevan examined

the claimant at the request of the Director, OWCP on May 10, 1991.

It was his opinion that the claimant suffered from occupational pneumoconiosis and that the pneumoconiosis accounted for 50% of the

claimant’s respiratory disability, with the remaining 50% being due

to suspected cardiovascular disease. While this is consistent with the

award of benefits and Dr. Rasmussen’s opinion, the ALJ found that

Dr. Vasudevan failed to consider whether the claimant’s history of

cigarette smoking was a component of these abnormalities and it

appeared that Dr. Vasudevan did not have an accurate understanding

6 CONSOLIDATION COAL CO. v. DIRECTOR OWCP
of the claimant’s smoking history. (Dr. Vasudevan recorded on history that claimant smoked 3/4 pack per day since 1951.) Thus the ALJ

rejected Dr. Vasudevan’s opinion as failing to constitute a reasoned

medical opinion under § 718.202(a)(4). 

The ALJ rejected the opinion of Dr. Fino as to the cause of the

claimant’s pulmonary impairment. Dr. Fino did not examine the

claimant. Based on his review of the records, he concluded, like Dr.

Bercher, that the claimant had obstructive pulmonary impairment but

no restrictive pulmonary impairment. Dr. Fino stated that lung volumes were elevated and thus were inconsistent with fibrosis. Dr. Fino

testified that coal mine dust induced lung disease is primarily evidenced by impairment in gas exchange rather than impairment in ventilatory capacity. Based on the decrease in the claimant’s blood gases,

Dr. Fino admitted that he believed there was some gas abnormality,

but there was also a significant ventilatory abnormality, and that you

had to put the two in perspective "when you are dealing with a normal

diffusing capacity [DLCO]". Dr. Fino also stated that the first exercise blood gas study by Dr. Rasmussen showed a drop of pO2 with

exercise, but the subsequent exercise blood gas studies by Dr. Bercher

and Dr. Vasudevan "with comparable levels of exercise" showed no

drop. He opined that coal worker’s pneumoconiosis is an interstitial

pulmonary condition which causes a fixed fibrotic abnormality which

should cause a drop in pO2 on exercise all the time, while variability

in the pO2 value with exercise would be consistent with obstructive

lung disease due to cigarette smoking. Dr. Fino again pointed to normal diffusing capacity values (DLCO), stating that a "normal diffusing capacity rules out the presence of clinically significant pulmonary

fibrosis [pneumoconiosis]." 

First, as the ALJ pointed out, Dr. Fino’s opinion that the intensity

of exercise in the three blood gas studies was comparable is not supported by the record. In the first test by Dr. Rasmussen which showed

impairment of gas exchange and significant hypoxia during exercise,

the claimant walked on a treadmill in increasing increments of speed

and grade for a total of 11 minutes and reached a maximum of 2.5

mph at 12% grade. Of the two subsequent blood gas studies that Dr.

Fino referred to as comparable, the extent of exercise for Dr.

Vasudevan’s study was walking on a treadmill for five minutes and

55 seconds at a speed of 0.9 mph at a 0.5% grade. In Dr. Bercher’s

CONSOLIDATION COAL CO. v. DIRECTOR OWCP 7
test, the period of exercise was only 4 minutes and 15 seconds with

no indication of speed or grade. In regard to this, Dr. Rasmussen

stated that the impairment of gas exchange generally increases with

increasing energy expenditure, and that certain other values recorded

during the tests in question indicated that oxygen consumption was

significantly lower in Dr. Vasudevan’s study indicating that the

claimant exercised at a much lower exercise level and for a much

shorter duration than in Dr. Rasmussen’s test. The record supports the

ALJ’s findings that the levels of exercise were in fact not comparable.

And even if the intensity of exercise in the three blood gas studies

could be found to be comparable, the record supports that Dr. Bercher’s exercise blood gas test was inadequate. The ALJ pointed to Dr.

Rasmussen’s testimony that there is a distinct rise in the pO2 very

promptly after exercise and that the Social Security Administration

and the Department of Labor require the blood sample for exercise

blood gas studies to be drawn during exercise. Dr. Rasmussen testified that Dr. Bercher’s study was inadequate, and the employer concedes that Dr. Bercher’s study did not conform to the requirements of

20 C.F.R. § 718.105(b) which requires that blood gas samples be

drawn during exercise, and, to the extent that Dr. Bercher relied on

this study, the employer admits that the ALJ correctly ruled the

assessment worthy of lesser weight. Consolidation brief at 10, footnote 2. It follows that the ALJ correctly found that to the extent that

Dr. Fino relied on this study to conclude that the claimant had no gas

exchange impairment or restrictive disease, which the record shows

he did, his opinion was not well reasoned. 

In addition to the blood gas studies, the ALJ noted that Dr. Fino’s

opinion that the claimant had no restrictive/interstitial disease was

based on the reasoning that the claimant’s diffusing capacity values

were normal and that normal diffusing capacity rules out the presence

of clinically significant pulmonary fibrosis, and pneumoconiosis is an

example of a pulmonary fibrosis. The ALJ found, however, that the

claimant’s diffusing capacity was in fact abnormal when measured

against standardized reference values set forth by the American Medical Association for evaluating respiratory impairment. As stated

above, the employee did not show that the use of the AMA guides in

this case was unfair or incorrect. 

The ALJ also rejected the opinion of Dr. Gregory Endres-Bercher.

Dr. Bercher examined the claimant at the request of the employer on

8 CONSOLIDATION COAL CO. v. DIRECTOR OWCP
October 22, 1991. His opinion was that the claimant had definite respiratory impairment, but the impairment was due only to his smoking.

He based this opinion on his finding that the claimant "does not demonstrate the presence of a restrictive disorder on pulmonary function

testing, which therefore precludes coal worker’s pneumoconiosis as

the etiology of his disability." Dr. Bercher stated that the claimant

demonstrated hypoxemia (deficient oxygenation of the blood) with

arterial blood-gas testing both at rest and exercise, but that blood gas

findings were not specific as to etiology. 

The ALJ found that Dr. Bercher’s opinion that the claimant did not

have pneumoconiosis and that his respiratory impairment was caused

by cigarette smoking alone was less creditable and not a reasoned

medical judgment because it was based at least in part, on the exercise

blood gas study which was admittedly unreliable. Both Dr. Rasmussen and Dr. Fino stated, and it is uncontradicted in the record, that a

blood gas study taken after exercise as opposed to during exercise or

immediately after exercise has little or no probative value. Dr. Rasmussen and Dr. Fino testified that blood must be taken during the

exercise or at least within 10-15 seconds of the exercise to give reliable results. In this case, Dr. Bercher’s blood gas study which showed

persistent but no increase in hypoxia with exercise was taken at some

undocumented and unknown time after exercise. The ALJ also discredited Dr. Bercher’s opinion that the claimant did not have pneumoconiosis because it was based on Dr. Bercher’s opinion that the

claimant’s test for single breath diffusing capacity (DLCO) was normal, when in fact it was abnormal based on the more creditable testimony of Dr. Rasmussen and when measured against the AMA’s

standardized predicted values as discussed above. 

The employer also offered the medical opinions of three other nonexamining physicians — Dr. Shawn Chillag, Dr. James Castle, Dr. A.

Dahhan. The ALJ found each of these opinions to be unreasoned

because each was based on the same flawed test results upon which

Dr. Bercher and Dr. Fino relied as discussed above. Again the record

supports the ALJ’s finding. Dr. Chillag stated that the normal diffusion capacity "indicates lack of an interstitial fibrotic process as is

seen in pneumoconiosis." Dr. Castle likewise pointed to Dr. Rasmussen’s exercise blood gas study that showed a fall in pO2 but stated

that one of the later blood gas studies obtained "during exercise" was

CONSOLIDATION COAL CO. v. DIRECTOR OWCP 9
"seen to increase" and that "[t]his is inconsistent with the findings one

would expect with coal worker’s pneumoconiosis, and "[c]learly, two

of the studies were inconsistent with this finding." The ALJ found

that Dr. Dahhan also relied on the same flawed blood gas tests when

he found insufficient evidence of pneumoconiosis based in part on

"alteration in the blood gas exchange mechanism that improved after

exercise on two occasions . . . ." 

There is substantial evidence in the record to support that the opinions of Doctors Bercher, Fino, Chillag, Castle, and Dahhan that the

claimant did not have pneumoconiosis were based at least in part if

not totally on either or both the unreliable blood gas test performed

by Dr. Bercher and on a DLCO test performed by Dr. Bercher which

was 57.9% and thus abnormal when compared with the standardized

predicted value set forth by the American Medical Association. Thus

there is substantial evidence to support the ALJ’s finding that such

opinions were not reasoned. 

Finally, we find no merit in the employer’s argument that the

ALJ’s analysis of conflicting evidence was partial or irrational. The

employer asserts that the ALJ found, on his own and without the support of any medical opinion, that blood gas studies affirmatively "reveal" a restrictive lung impairment, and that such finding is

erroneous. The record in this case does not support such an argument.

The ALJ reviewed and weighed all the evidence and found the opinion of Dr. Rasmussen to be reasoned and creditable. There is substantial evidence to support this finding. Contrary to Doctors Bercher,

Fino, Chillag, Castle, and Dahhan, Dr. Rasmussen did not rely on

patently flawed or unreliable tests to support his medical opinion.

Rather he considered all the evidence of record, including the reliability of such evidence, to reach his opinion. 

III

We agree with the Benefits Review Board that the ALJ made no

error of law, that his findings of fact are supported by substantial evidence in the record as a whole, that the claimant has established the

presence of occupational pneumoconiosis under § 718.202(a)(4), and

that claimant’s total disability is caused in part by pneumoconiosis

under § 718.204(b)(c). 

10 CONSOLIDATION COAL CO. v. DIRECTOR OWCP
The petition for review is accordingly 

DENIED.

CONSOLIDATION COAL CO. v. DIRECTOR OWCP 11