UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1601

EASTERN ASSOCIATED COAL, LLC,

Petitioner,

versus

PEARL M. WILES; DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

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

(03-0240-BLA)

Argued: January 31, 2006 Decided: April 12, 2006

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Petition granted and remanded by unpublished per curiam opinion.

ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG, L.L.P.,

Washington, D.C., for Petitioner. Terry G. Kilgore, WOLFE,

WILLIAMS & RUTHERFORD, Norton, Virginia, for Respondents. ON

BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG, L.L.P., Washington,

D.C., for Petitioner. Joseph E. Wolfe, Bobby S. Belcher, WOLFE,

WILLIAMS & RUTHERFORD, Norton, Virginia, for Respondent Pearl M.

Wiles.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Pearl Wiles applied for survivor’s benefits under the Black

Lung Benefits Act (the “Act”), 30 U.S.C. §§ 901 et seq., after her

husband, Estil Wiles, died. An Administrative Law Judge (“ALJ”)

awarded benefits to Ms. Wiles, and the Benefits Review Board (the

“Board”) upheld the award. Eastern Associated Coal Corporation

(“Eastern”), Mr. Wiles’ former employer, now petitions for review

of the Board’s decision. For the following reasons, we grant the

petition for review and remand for further proceedings consistent

with this opinion.

I.

 Mr. Wiles was a coal miner for thirty-three years and had a

history of heavy smoking. In 1987, an ALJ awarded benefits to Mr.

Wiles after finding that he was totally disabled by pneumoconiosis

arising from his coal mine employment. The Board later affirmed

this decision.

Shortly after Mr. Wiles’ death in 2000, Ms. Wiles filed her

claim for survivor’s benefits. After the Department of Labor

notified Eastern of its belief that Ms. Wiles was entitled to

benefits, the claim proceeded to an ALJ, and the parties agreed to

have a decision made on the record. The record before the ALJ

included the medical opinions of Drs. Emory Robinette and Ben

Branscomb. Dr. Robinette was Mr. Wiles’ treating physician from
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1985 through November 1999. Dr. Branscomb, an expert retained by

Eastern, reviewed Mr. Wiles’ medical records from 1973 through the

date of death. Although the experts agreed that Mr. Wiles suffered

from chronic obstructive pulmonary disease (“COPD”), they disagreed

as to whether this condition was pneumoconiosis resulting from his

coal dust exposure or an impairment deriving from his history of

heavy smoking. The ALJ gave greater weight to Dr. Robinette’s

records suggesting that Mr. Wiles suffered from pneumoconiosis with

associated obstructive lung disease caused by coal dust exposure

than to Dr. Branscomb’s opinion that Mr. Wiles’ lung disease was

the result of his smoking history and possible prior exposure to

tuberculosis. In making this determination, the ALJ noted that

although Dr. Branscomb’s credentials were superior to those of Dr.

Robinette’s (whose credentials were not in the record), “Dr.

Robinette followed Mr. Wiles for approximately ten years, seeing

him frequently for treatment of his severe pulmonary problems.”

J.A. 15. Further, the ALJ discredited Dr. Branscomb for failing to

cite any publications that discuss tobacco use as the sole or

typical cause of the specific symptoms of COPD exhibited by Mr.

Wiles.

The Board affirmed these determinations and upheld the grant

of survivor’s benefits to Ms. Wiles. Eastern petitioned for review

of the Board’s decision.
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II.

We review decisions of the Board to determine whether it

properly found that the ALJ’s decision was supported by substantial

evidence and was in accordance with law. See Doss v. Director,

OWCP, 53 F.3d 654, 658 (4th Cir. 1995). In making this

determination, we conduct an independent review of the record to

decide whether the ALJ's findings are supported by substantial

evidence. Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir.

1995). Substantial evidence is more than a mere scintilla of

evidence, but only such evidence that a reasonable mind might

accept as adequate to support a conclusion. Lane v. Union Carbide

Corp., 105 F.3d 166, 170 (4th Cir. 1997). Subject to the

substantial evidence requirement, the ALJ has the sole authority to

make credibility determinations and resolve inconsistencies or

conflicts in the evidence. Grizzle v. Pickands Mather & Co., 994

F.2d 1093, 1096 (4th Cir. 1993). The ALJ, however, may rely only

on a medical opinion that constitutes a reasoned medical judgment.

See Freeman United Coal Mining Co. v. Cooper, 965 F.2d 443, 448

(7th Cir. 1992).

To establish entitlement to black lung benefits as a

qualifying surviving spouse, a claimant must prove that (1) the

miner suffered from pneumoconiosis, (2) the miner’s pneumoconiosis

arose at least in part out of coal mine employment, and (3) that

the miner’s death was due to pneumoconiosis. U.S. Steel Mining Co.
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v. Director, OWCP, 187 F.3d 384, 388 (4th Cir. 1999) (citing

relevant regulations). A coal miner’s death is considered “due

to” pneumoconiosis if pneumoconiosis was a “substantially

contributing cause” of the miner’s death. See 20 C.F.R. §

718.205(c) (2004). We have interpreted this standard to permit a

finding of causation if a claimant proves that pneumoconiosis

“actually hastened the miner’s death.” Shuff v. Cedar Coal Co.,

967 F.2d 977, 979 (4th Cir. 1992). A claimant may establish the

existence of pneumoconiosis by means of (1) chest x-rays; (2)

biopsy or autopsy evidence; (3) invocation of the presumptions at

20 C.F.R. §§ 718.304 - 718.306; or (4) medical opinion evidence.

See 20 C.F.R. § 718.202(a). 

The ALJ determined that Ms. Wiles failed to establish the

existence of pneumoconiosis by x-ray evidence and that there was no

biopsy or autopsy evidence. Because the presumptions of 20 C.F.R.

§§ 718.304 - 718.306 are inapplicable, it is undisputed that the

only basis upon which Ms. Wiles may establish that her husband

suffered from pneumoconiosis is medical opinion evidence pursuant

to 20 C.F.R. § 718.202(a)(4). On appeal, Eastern contends that the

ALJ erred in her consideration of the medical evidence because she

relied on an impermissible preference for the opinion of a treating

physician and erroneously discredited the opinion of Eastern’s

expert. 
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A.

Eastern first argues that the ALJ erred by invoking a

presumption that Dr. Robinette’s opinion as treating physician be

given greater weight than the opinion of Dr. Branscomb. While we

have stated “that as a general matter the opinions of treating and

examining physicians deserve especial consideration,” we have also

clearly stated that “[n]either 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.” Grizzle, 994 F.2d at

1097; 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.”). The

Supreme Court has since held as much, albeit in the context of a

case involving an ERISA benefits plan. Black & Decker Disability

Plan v. Nord, 538 U.S. 822, 834 (2003) (“But, we hold, courts have

no warrant to require administrators automatically to accord

special weight to the opinions of a claimant’s physician; nor may

courts impose on plan administrators a discrete burden of

explanation when they credit reliable evidence that conflicts with

a treating physician’s evaluation.”). Because we are unable to

discern from the record whether the ALJ did, in fact, invoke a

presumption that the treating physician’s opinion be given greater
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weight than other expert opinions, we remand for a reweighing of

the evidence based on the proper legal standard. 

B.

Eastern also argues that the ALJ erred in discrediting Dr.

Branscomb’s opinion for failing to cite published material. We

require that the ALJ give sufficient reasons for crediting or

discrediting an expert opinion. Milburn Colliery Co. v. Hicks, 138

F.3d 524, 533 (4th Cir. 1998). Although the ALJ discredited Dr.

Branscomb for failing to cite any publications that discuss tobacco

use as the sole or typical cause of the specific symptoms of COPD

exhibited by Mr. Wiles, the ALJ did not require any published

materials to support Dr. Robinette’s conclusions. Considering the

vast experience and extensive credentials of Dr. Branscomb compared

to the complete absence of any credentials for Dr. Robinette, we

find this appraisal wholly unsatisfactory. See id. at 536 (stating

that “experts’ respective qualifications are important indicators

of the reliability of their opinions”); Adkins v. Director, OWCP,

985 F.2d 49, 52 (4th Cir. 1992) (stating that “a primary method of

evaluating the reliability of an expert’s opinion is of course his

expertise”). Thus, we remand for a reweighing of the conflicting

medical opinions.
*Because of our disposition, we need not address Eastern’s

contention that the ALJ relied upon an inappropriate preference for

the treating physician’s unexplained conclusion that Mr. Wiles’

death was actually hastened by pneumoconiosis. 

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III.

Finding the ALJ made these errors of law, we conclude that

review of this claim requires a fresh look at the evidence.

Accordingly, we grant the petition for review and direct the Board

to remand to a new ALJ with instructions to review the record for

a determination of whether Ms. Wiles has established entitlement to

survivor’s benefits. See Milburn, 138 F.3d at 537. To determine

whether Ms. Wiles meets her burden, the new ALJ has discretion to

reopen the record.*

PETITION GRANTED AND REMANDED