# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 19, 2008

Decided February 9, 2009

Before

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 08

‐ 1574

RICHARD SPRAGUE,

Petitioner

,

v.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF

LABOR, and FREEMAN UNITED

COAL MINING COMPANY,

Respondents

. Petition for Review of an Order of the

Benefits Review Board, United States

Department of Labor.

No. 03

‐ BLA

‐ 5980

ORDER

On this very day, 19 years ago, Richard Sprague, a former coal miner, filed a pro se

claim for black lung disability benefits. His claim was denied four months later. He filed

for benefits again in 2002 and his case is here now after it has gone back and forth before an

administrative law judge (ALJ) and the Department of Labor’s Benefits Review Board. And

with our decision today, the case still cannot be put to rest. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 1574 Page 2

Sprague, who is now 81 years old, worked 24 years at a coal mine. He has also

smoked between a pack and a half a pack of cigarettes a day since he turned 18 in 1945. He

appeals the denial of benefits under the Black Lung Act, 30 U.S.C. § 921. Sprague no doubt

suffers from an obstructive lung disease that has totally disabled him, but Freeman United

Coal Mining Company, the coal mine operator responsible for any benefit payments that

may be awarded, contests whether Sprague’s disability stems from his employment as a

coal miner.

The parties agree that Sprague is totally disabled from a lung impairment and suffers

from chronic obstructive pulmonary disease (COPD), but to obtain benefits Sprague must

also prove that he is totally disabled by pneumoconiosis arising out of coal mine

employment. See 20 C.F.R. § 718.1(a); Consolidation Coal Co. v. Dir., Office of Workers’ Comp.

Programs

, 521 F.3d 723, 725 (7th Cir. 2008). Sprague can prove that he has the clinical

form of pneumoconiosis, a disease in which inhaled coal dust damaged the lung tissue, see

20 C.F.R. § 718.201(a)(1), or he can establish legal pneumoconiosis, which is any other lung

disease related to or aggravated by coal dust, see 20 C.F.R. § 718.201(a)(2), (b). See also

Consolida

‐ tion Coal

, 521 F.3d at 725 n.1.

Freeman requested and received a hearing before an ALJ, contesting the Department

of Labor district director’s initial determination that Sprague was entitled to benefits. See 20

C.F.R. § 725.418. The ALJ considered a plethora of medical documents: ten readings of

three X

‐ rays done by six different doctors; five readings by five doctors of a single CT scan;

and doctors’ reports from both parties interpreting the X

‐ rays, CT scan, medical history,

occupational history, physical exam, and other medical tests. The ALJ found that none of

this evidence established either clinical or legal pneumoconiosis and denied benefits. In

reaching this decision, the ALJ discredited a report by Sprague’s primary expert, Dr. Robert

Cohen, a board

‐ certified pulmonary specialist and director of a black lung clinic, who

diagnosed Sprague with both clinical and legal pneumoconiosis. The ALJ thought that Dr.

Cohen’s report was “slanted” in Sprague’s favor, stating, for example, that Dr. Cohen

overstated Sprague’s exposure to coal mine dust but minimized his smoking history and

that Dr. Cohen relied selectively on certain medical reports. The ALJ, noting that Sprague

was exposed more to cigarette smoke than to coal dust and his condition worsened after he

stopped mining but continued smoking, concluded that it seemed “much more likely that

[Sprague’s] obstructive impairment is due to smoking rather than coal mining.”

Sprague appealed to the Benefits Review Board (BRB), which identified two

evidentiary errors: first, the ALJ admitted too many readings of the CT scan, and second,

the ALJ wrongly excluded a positive re

‐ reading of an X

‐ ray that Sprague had submitted to

rebut Freeman’s case. The BRB vacated the ALJ’s decision in part and instructed him onNo. 08

‐ 1574 Page 3

remand to reevaluate the X

‐ ray and CT

‐ scan evidence, to reconsider his determination that

Dr. Cohen understated Sprague’s smoking history, and to refrain from substituting his own

opinion for that of the medical experts.

On remand the ALJ again denied benefits. He admitted the positive re

‐ reading of

the X

‐ ray, but found that it did not affect his finding that the X

‐ ray evidence failed to

prove the existence of pneumoconiosis. He continued to discount Dr. Cohen’s report

because it was based in part on positive readings of the X

‐ ray and CT

‐ scan evidence that the

ALJ had determined were negative. The ALJ also continued to maintain that Dr. Cohen’s

opinion was flawed because it understated Sprague’s smoking history. Finally, the ALJ

denied that he was substituting his own opinion for that of the medical experts and claimed

instead that he was merely “exercising common sense”; he reasserted that Sprague’s

impairment was more likely due to smoking than coal mining.

Sprague appealed again to the BRB, but this time the panel split and the majority

found the ALJ’s decision supported by substantial evidence. The dissenting judge,

however, thought that the ALJ exhibited “obvious bias” against Sprague; failed to reweigh

the X

‐ ray evidence; mischaracterized Dr. Cohen’s medical opinion as to Sprague’s work

history, type of coal mine employment, and smoking history; continued to substitute his

own opinion for that of medical experts; and applied an incorrect legal standard by

assuming that Sprague’s impairment stemmed from only a single cause, rather than

determining whether it was “significantly related to, or substantially aggravated by, dust

exposure in coal mine employment” as directed by 20 C.F.R. § 718.201(a)(2).

On appeal to this court, Sprague contends that the ALJ harbored a personal belief

that Sprague did not suffer from pneumoconiosis and thus did not objectively weigh the

evidence. With regard to the X

‐ ray evidence, for example, Sprague argues that the ALJ

considered the qualifications of only some of the doctors and did not give valid reasons for

crediting the doctors that he did, possibly overlooking a positive X

‐ ray. Turning to the CT

‐

scan evidence, Sprague argues that the ALJ did not follow the BRB’s instructions on remand

to exclude three of Freeman’s four CT

‐ scan readings and that he had no basis in the record

to conclude that Freeman’s doctors are more qualified to read CT scans than Dr. Cohen.

Finally, Sprague lists a litany of reasons why he believes that the ALJ erred when rejecting

Dr. Cohen’s medical reports that diagnosed clinical and legal pneumoconiosis. To begin, he

argues that the ALJ erred in rejecting Dr. Cohen’s diagnosis of clinical pneumoconiosis

based on an invalid analysis of the X

‐ ray evidence. Sprague also contends that the ALJ gave

Dr. Cohen’s opinion less weight because Dr. Cohen was Sprague’s chosen expert and that

the ALJ improperly substituted his own opinion for that of the medical experts. In addition,

Sprague argues that the ALJ made a legal error by not addressing whether Sprague’s lungNo. 08

‐ 1574 Page 4

1 

### B-readers are doctors who have demonstrated proficiency in recognizing which lung

opacities indicate pneumoconiosis, as opposed to another lung disease. See 20 C.F.R.

§ 718.202(a)(1)(ii)(E). disease was cause in part by occupational exposure. Sprague asks that this case be

remanded to a different ALJ.

We review the ALJ’s decision to determine whether it is rational, supported by

substantial evidence, and consistent with controlling law. Stalcup v. Peabody Coal Co.

, 477

F.3d 482, 484 (7th Cir. 2007). We will not address each of Sprague’s claims of error because

we conclude that the ALJ’s treatment of the X

‐ ray evidence, his substitution of his opinion

for that of the medical evidence, and his failure to address whether coal mining contributed

to Sprague’s lung impairment are sufficient to vacate and remand the entire case.

Because clinical pneumoconiosis is caused by deposits of coal dust in the lungs, the

presence of the disease can sometimes be seen in an X

‐ ray as opacities in the lungs.

Evaluating the significance of X

‐ ray readings submitted by the parties is a task that falls to

an ALJ. See Mullins Coal Co., Inc. v. Dir., Office of Workers’ Comp. Progs.

, 484 U.S. 135, 148

‐ 49

(1987) (“[T]he ALJ must weigh conflicting interpretations of the same X

‐ ray in order to

determine whether it tends to prove or disprove the existence of pneumoconiosis.”). If an

X

‐ ray generates conflicting readings, an ALJ may give greater weight to an interpretation by

a doctor with superior credentials. See 20 C.F.R. § 718.202(a)(1); Zeigler Coal Co. v. Dir., Office

of Workers’ Comp. Programs

, 326 F.3d 894, 899 (7th Cir. 2003); Old Ben Coal Co. v. Battram

, 7

F.3d 1273, 1276 (7th Cir. 1993). Thus, if one doctor is a B

‐ reader 1 and another is dual

‐ qualified as a B

‐ reader and a board

‐ certified radiologist, the ALJ may accept the conclusion

of the dual

‐ qualified doctor. If the doctors, however, are equally qualified, then an ALJ may

look beyond the readings to other relevant evidence, such as the ages of different X

‐ rays or

the persuasiveness of the doctors’ reports. See Old Ben Coal

, 7 F.3d at 1277

‐ 78.

The ALJ may not, however, count the number of opinions in support of and against a

pneumoconiosis diagnosis and just choose the party having more medical opinions in its

favor. See Stalcup

, 477 F.3d at 484. Similarly, the ALJ may not automatically side with the

party retaining better

‐ qualified doctors to read the X

‐ rays but must come to a conclusion

about the probativeness of each underlying X

‐ ray. See Cook v. Dir., Office of Workers’ Comp.

Programs

, 816 F.2d 1182, 1185 (7th Cir. 1987) (“Under the regulation it is not the reading, but

the x

‐ ray, that establishes the presumption [of pneumoconiosis].”); 20 C.F.R. § 718.202(a)(1)

(“A chest X

‐ ray

. . . may form the basis for a finding of the existence of pneumoconiosis.”).

Only after examining the probative value of each individual X

‐ ray can the ALJ come to aNo. 08

‐ 1574 Page 5

reasoned conclusion about whether the X

‐ ray evidence as a whole proves the existence of

pneumoconiosis.

Here the ALJ failed to resolve the conflicting interpretations of each X

‐ ray and con

‐

cluded that the X

‐ ray evidence did not establish the presence of pneumoconiosis without

first considering the qualifications of each doctor who read the X

‐ rays. Based on a

comparison of the qualifications of the doctors who read the 1999 X

‐ ray, the ALJ concluded

that the X

‐ ray did not tend to establish the presence of pneumoconiosis; however, he carried

out no such comparison for either the 2002 or 2003 X

‐ ray. For example, Dr. Afzal Ahmed

and Dr. Alan Repsher gave conflicting interpretations of the 2003 X

‐ ray, but the ALJ did not

determine which doctor was more qualified. Moreover, the ALJ inexplicably compared the

qualifications of Dr. Cohen and Dr. Repsher, two doctors who never read the same X

‐ ray,

but such a comparison adds nothing unless those experts read the same X

‐ ray.

The ALJ also impermissibly substituted his own opinion for that of the medical

experts by concluding

‐‐ without citing to any doctor’s report

‐‐ that Sprague’s lung

impairment was more likely due to smoking, and not coal mining. See Zeigler Coal Co. v.

Kelley

, 112 F.3d 839, 841 (7th Cir. 1997). The cause of Sprague’s disease is a medical

determination, which depends on his medical history, the particular nature of any opacities

in his lungs, and his exposure to cigarette smoke and coal mine dust. Cf. Compton v. Inland

Steel Coal Co.

, 933 F.2d 477, 482

‐ 83 (7th Cir. 1991) (noting that cause of miner’s total

disability is medical, not legal, determination). Instead of relying on his own “common

sense,” the ALJ should have determined whether Dr. Cohen’s report diagnosing

pneumoconiosis was more or less credible than the doctors who did not diagnose

pneumoconiosis. See Ziegler Coal Co. v. Office of Workers’ Comp. Progs.

, 490 F.3d 609, 616

‐ 17

(7th Cir. 2007).

Furthermore, in supporting his conclusion, the ALJ assumed that COPD is caused

less frequently by coal dust exposure than by smoking, but that assumption is not

supported by substantial evidence. The ALJ apparently misunderstood the significance of

certain studies cited by Dr. Cohen: the ALJ interpreted Dr. Cohen’s review of the studies

about coal dust exposure to mean that COPD is caused less frequently by coal dust

exposure than by smoking, but Dr. Cohen regarded exposure to coal dust to be as

significant as exposure to smoking. What’s more, the ALJ may have erred by overrelying

on an unsubstantiated statistic from a report by one of Freeman’s experts—that “1 in 5

heavy cigarette smokers will develop COPD, whereas less than 1 in 100 never

‐ smoking coal

miners develop COPD.” This statistic seems to conflict with findings by the Department of

Labor showing that coal mining exposure is similar to cigarette smoking in contributing to

chronic bronchitis and emphysema, two obstructive lung diseases. See 65 F.R. 79920, 79937

‐No. 08

‐ 1574 Page 6

45 (refuting claims that coal mine dust does not cause obstructive lung disease); see also

Consolidation Coal

, 521 F.3d at 726 (“The medical authority indicates that nonsmoking

miners develop moderate and severe obstruction at the same rate as smoking miners.”).

In addition, when the ALJ concluded that Sprague’s COPD was due to smoking, he

also made a legal error by not addressing whether Sprague’s COPD was “significantly

related to, or substantially aggravated by, dust exposure in coal mine employment.” 20

C.F.R. § 718.201(a)(2), (b). Even if Sprague’s smoking contributed to his COPD, he is still

entitled to benefits if mining also contributed to it. See Midland Coal Co. v. Dir., Office of

Workers’ Comp. Programs

, 358 F.3d 486, 494

‐ 96 (7th Cir. 2004); Shelton v. Dir., Office of

Workers’ Comp. Programs

, 899 F.2d 690, 693 (7th Cir. 1990).

Finally, Sprague asks for a different ALJ on remand based on the ALJ’s apparent bias

against Sprague’s claim. We agree and urge the Director to assign a new ALJ to take a fresh

look at the evidence. See Golembiewski v. Barnhart

, 322 F.3d 912, 918 (7th Cir. 2003); Sarchet v.

Chater

, 78 F.3d 305, 309 (7th Cir. 1996).

The BRB’s order is VACATED and the case is REMANDED for further proceedings.