UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PEABODY COAL COMPANY,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
                                                                      No. 98-2469
STATES DEPARTMENT OF LABOR;
LILLIE M. WOODALL, Executrix for
the Estate of Woodrow Woodall,
deceased,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-1352-BLA)

Argued: June 11, 1999

Decided: November 10, 1999

Before MURNAGHAN and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Laura Metcoff Klaus, ARTER & HADDEN, L.L.P.,
Washington, D.C., for Petitioner. George A. Mills, III, Huntington,
West Virginia, for Respondents. ON BRIEF: Mark E. Solomons,
ARTER & HADDEN, L.L.P., Washington, D.C., for Petitioner.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Woodrow Woodall filed a claim for benefits under the Black Lung
Benefits Act, 30 U.S.C. §§ 901-945 as amended (1988). The Admin-
istrative Law Judge (ALJ) issued an order awarding benefits, and the
Benefits Review Board affirmed. After the Board denied Peabody
Coal's request for reconsideration, Peabody petitioned this court for
review of the Board's order. We vacate the order and remand the case
for findings that comply with the Act.

I

Woodall began his coal mine employment in 1969 at the age of 48.
He established that he worked in a coal mine 17 years between 1969
and 1988. Woodall smoked two packs of cigarettes a day for forty
years. He filed his first claim for benefits on October 19, 1983. On
March 21, 1985, the Department of Labor (DOL) denied his claim
because he failed to establish the necessary elements of entitlement.
Although a medical evaluation disclosed severe chronic obstructive
pulmonary disease, it did not reveal occupational lung disease. Woo-
dall did not appeal; instead, he continued his employment until he
retired at the age of 67. The West Virginia Compensation Board
granted him a 60% disability award for pulmonary impairment based
on a finding of pneumoconiosis.

After he retired, Woodall filed a new claim. According to the regu-
lations, a second claim is automatically denied on the basis of the first
denial unless the deputy commissioner determines that there has been
a material change in conditions. See 20 C.F.R. § 725.309(c). Once
Woodall established that there had been a material change, Peabody
requested a hearing before an ALJ.

Applying the applicable Fourth Circuit precedent for duplicate
claims found in Lisa Lee Mines v. Director, 86 F.3d 1358 (4th Cir.

                     2
1996) (en banc), the ALJ found that there had been a material change
of conditions, and he determined that pneumoconiosis was present.
The ALJ based this finding primarily on the biopsy evidence in the
record. The ALJ found that the pneumoconiosis caused total disabil-
ity. He reached these conclusions after considering the conflicting
opinions of five doctors. The medical opinion evidence was not unan-
imous about whether Woodall had pneumoconiosis and--if it did
exist--whether it caused disability.

Dr. Ranavaya examined Woodall in 1995. He relied on a positive
x-ray and Woodall's work history to diagnose pneumoconiosis. Dr.
Ranavaya determined that the pneumoconiosis contributed to Woo-
dall's disability "to a major extent." Later that same year, Woodall
was examined by Dr. Zaldivar. Dr. Zaldivar, a board-certified special-
ist in pulmonary disease, found no evidence of pneumoconiosis on a
chest x-ray. Instead, he diagnosed severe emphysema manifested as
bullous disease of the lung and attributed the disability exclusively to
Woodall's cigarette smoking.

Dr. Fino reviewed the reports of Dr. Ranavaya, Dr. Zaldivar, and
Dr. Thavaradhava, who had examined Woodall in 1983 in conjunc-
tion with his initial claim. Dr. Fino is a board-certified specialist in
internal medicine and pulmonary disease and a B-reader. He agreed
with Dr. Zaldivar that the x-rays showed no evidence of pneumoconi-
osis. Dr. Fino also agreed that Woodall's severe respiratory impair-
ment was due exclusively to cigarette smoking.

Dr. Tweel examined Woodall on May 15, 1995; he noted that the
bullous in the lower left lung was expanding and recommended a bul-
lectomy. On October 11, 1995, Dr. Tweel referred Woodall to Dr. Jef-
frey George for evaluation of his pulmonary status. Dr. George
determined that Woodall needed surgery and performed a left thora-
cotomy and resection of multiple emphysematous blebs of the lower
left lobe on October 11, 1995. Woodall was discharged on October
18, 1995. The final diagnosis was severe emphysematous pulmonary
disease with bullae, postop atrial fibrillation and flutter, treated and
resolved, and history of chronic tobacco use in the past.

Dr. Kleinerman, who is board certified in anatomical and clinical
pathology, examined Woodall's medical record, including the reports

                    3
made by all the other doctors who had previously examined Woodall,
and histologic slides from the lung resection. Dr. Kleinerman found
that Woodall had a mild degree of simple pneumoconiosis; there was
no evidence of nodular silicosis or complicated pneumoconiosis. The
simple pneumoconiosis was not sufficient to cause the obstructive air-
ways disease and arterial hypoxemia which Woodall suffered.
Emphysema was the source of Woodall's ventilatory dysfunction,
caused by prolonged and extensive cigarette smoking.

At the conclusion of his report Dr. Kleinerman noted that his opin-
ion differed from other doctors due to the fact that his opinion was
"based on direct microscopic examination of the lung tissue while
other physicians made their diagnosis from chest x-rays or reports."
J.A. at 71. In addition, Dr. Kleinerman explained that the "extensive
dissolution of the lung tissue resulting from the severe emphysema"
may have "masked evidence of the simple coalworkers' pneumoconi-
osis observed by x-ray." Id. The ALJ awarded benefits.

Peabody appealed the decision to the Benefits Review Board. The
Board affirmed the ALJ's decision, and Peabody filed a motion for
reconsideration and request for briefing order with the Benefits
Review Board. On August 10, 1998, the Board denied Peabody's
motion and declared the briefing order moot. Citing the Code of Fed-
eral Regulations, the Board determined that Peabody's motion for
reconsideration did not state "supporting rationale for the request."
J.A. at 25; 20 C.F.R. § 802.408(a). Additionally, the Board stated that
a briefing order would only serve to delay the resolution of the case
unnecessarily.

Peabody then appealed to this court. Woodall died on December 4,
1998, while Peabody's appeal was pending, and the district court sub-
stituted Lillie M. Woodall, executrix of his estate.

II

Pursuant to the Longshore and Harbor Workers' Compensation Act
this court has jurisdiction to review appeals from final orders of the
Board. See 33 U.S.C. § 921(c). The Board applies a substantial evi-
dence standard of review to the findings of fact made by the ALJ. See
Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). When

                    4
this court reviews a decision of the Board, we "undertake an indepen-
dent review of the record" to determine whether the ALJ's findings
of fact were supported by substantial evidence found in the record.
Id.; see Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir.
1998). There must be "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion," in order to satisfy
this standard. Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229
(1938).

Before we can determine whether the ALJ's decision is supported
by substantial evidence, we must first determine whether the ALJ
properly considered all the relevant evidence. See Sterling Smokeless
Coal Co. v. Akers, 131 F.3d 438, 439 (4th Cir. 1997). In order for this
court to find the decision was supported by substantial evidence, the
ALJ must have analyzed all the evidence and explained the weight he
gave probative exhibits. See id. We review legal conclusions made by
both the Board and the ALJ de novo. See Dehue , 65 F.3d at 1193.

III

In order to establish eligibility for benefits under the Act, Woodall
must prove that he suffered from pneumoconiosis that arose, at least
in part, out of coal mine employment. See 20 C.F.R. § 718.203(a).
Also, "[t]o be entitled to benefits, a claimant must prove by a prepon-
derance of the evidence that his pneumoconiosis was at least a con-
tributing cause of his totally disabling respiratory impairment."
Robinson v. Pickands Mather & Co., 914 F.2d 35, 38 (4th Cir. 1990).

There are four methods that can be used to establish the existence
of pneumoconiosis under the regulations: (1) chest x-rays; (2) biopsy
or autopsy; (3) presumptions described in 20 C.F.R.§ 202(a)(3); (4)
a physician's finding based on objective medical evidence supported
by reasoned medical opinion. See 20 C.F.R.§ 718.202(a). Because he
was not eligible for the presumptions mentioned in§ 718.202(a)(3),
Woodall had to establish his claim via one of the other methods. The
ALJ determined that the x-ray evidence failed to establish the exis-
tence of pneumoconiosis by a preponderance of the evidence. Of the
30 interpretations of 11 x-rays contained in the record, only 2 are pos-
itive for the presence of pneumoconiosis, while 28 are negative. None

                    5
of the ten interpretations submitted by qualified physicians were posi-
tive.

The biopsy evidence proved determinative. Woodall was able to
establish the existence of pneumoconiosis by biopsy. In 1997, Dr.
Kleinerman examined the lung tissue removed during Woodall's tho-
racotomy in October of 1995 and found that the tissue contained evi-
dence of mild pneumoconiosis. However, Dr. Kleinerman also
concluded that emphysema, not the mild pneumoconiosis, was
responsible for Woodall's disabling respiratory condition. The ALJ
based his finding that pneumoconiosis existed on the biopsy evidence
determining that Woodall had established one element of entitlement.

Whether Woodall can establish full entitlement hinges on causa-
tion. At issue in this case is the ALJ's analysis of the evidence--
specifically, whether he properly considered Dr. Ranavaya's medical
opinion. The ALJ stated that he accorded more weight to the medical
opinion of Dr. Ranavaya "because he examined[Woodall]" and con-
sidered his medical history and symptoms. He continued "[a]lthough
Dr. Kleinerman appears to have superior medical credentials . . . he
did not have the opportunity to observe [Woodall], as did Dr.
Ranavaya." J.A. at 16. The deciding factor in the ALJ's analysis of
the conflicting evidence was the fact that Dr. Ranavaya examined
Woodall. The Board noted in its opinion and order that the ALJ rea-
sonably accorded Dr. Kleinerman's opinion less weight because he
did not examine Woodall.

Peabody objects to the ALJ's decision in light of this court's rea-
soning articulated in Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438 (4th Cir. 1997), and Milburn Colliery Co. v. Hicks, 138 F.3d 524
(4th Cir. 1998). A doctor's medical opinion does not command defer-
ence simply because the doctor personally examined the claimant.
Akers, 131 F.3d at 441. An ALJ has a statutory obligation to "consider
all of the relevant evidence bearing upon the existence of pneumoco-
niosis and its contribution to the miner's death." Id. at 441-42. Part
and parcel of considering all relevant evidence is noting the compara-
tive credentials of the physicians. See Hicks , 138 F.3d at 536. Qualifi-
cations of expert witnesses can buttress the reliability of their
opinions. See id.

                    6
The ALJ adopted Dr. Kleinerman's conclusions only to the extent
that they support Dr. Ranavaya's opinion. Dr. Ranavaya's opinion
was based primarily on the same x-ray evidence that the ALJ found
did not establish the existence of pneumoconiosis. Additionally, the
ALJ credited Dr. Ranavaya's opinion to the exclusion of Dr. Fino's
and Dr. Zaldivar's, both of whom found that the x-ray evidence did
not warrant a diagnosis of pneumoconiosis.

The ALJ erred by deferring to the examining physician. Dr.
Ranavaya's medical opinion is not only inconsistent with Dr. Kleiner-
man's opinion; it is inconsistent with the findings made by the ALJ.
Specifically, Dr. Ranavaya found a length of work experience longer
than that determined by the ALJ, and he found the x-rays, which the
ALJ determined did not demonstrate the existence of pneumoconio-
sis, to be positive.

In light of this court's prohibition against a rule of deference
toward examining physicians enunciated in Akers and Hicks, the judg-
ment of the Benefits Review Board is vacated, and the case is
remanded for further consideration. The ALJ may reopen the proceed-
ings for receipt of additional evidence.

VACATED AND REMANDED

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