                     NOT RECOMMENDED FOR PUBLICATION
                            File Name: 05a0956n.06
                            Filed: December 7, 2005

                                      No. 04-3723

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

BUNA HUNT, Widow and o/b/o ESTATE OF
BENNETT HUNT,

      Petitioner,                                   On Review from the Decision of
                                                    the Benefits Review Board
v.

KENTLAND       ELKHORN     COAL
CORPORATION; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES,

      Respondents.
                                          /

BEFORE:      RYAN, GILMAN, and COOK, Circuit Judges.

      RYAN, Circuit Judge.        Buna Hunt brought a claim under the Black Lung Benefits

Act, 30 U.S.C. §§ 901-945, based on her deceased husband Bennett Hunt’s work as a coal

miner for 36 years. The Administrative Law Judge (ALJ) denied Hunt’s claim after finding

that she failed to show by a preponderance of the evidence that her husband’s “total

disability was due to pneumoconiosis.” The Benefits Review Board (BRB) upheld the ALJ’s

decision after finding that there was substantial evidence to support it. On appeal, Hunt

seeks to overturn the BRB’s decision affirming the ALJ’s denial of benefits. Having

reviewed the record, we now AFFIRM the BRB’s finding that the decision of the ALJ is

supported by substantial evidence.

                                              I.
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       Our “‘role in reviewing an ALJ’s decision is limited to determining whether substantial

evidence supports the ALJ’s conclusions.’” Jericol Mining, Inc. v. Napier, 301 F.3d 703,

708 (6th Cir. 2002) (quoting Gray v. SLC Coal Co., 176 F.3d 382, 387 (6th Cir. 1999)).

“‘Substantial evidence is such relevant evidence as a reasonable mind might accept as

adequate to support [the ALJ’s] conclusion.’” Id. (citation omitted). Where the decision of

the ALJ is reviewed by the BRB, the question presented to this court remains the same.

Campbell v. Consolidation Coal Co., 811 F.2d 302, 303 (6th Cir. 1987). Our standard of

review does not ask “whether the Board’s decision is supported by substantial evidence,

but whether the Board was correct in concluding that the [ALJ]’s [factual findings were or

were] not supported by substantial evidence.” Id.

                                             II.

       Hunt’s position on appeal, which is joined by the Department of Labor (DOL), is that

the ALJ’s decision that Bennett Hunt’s total disability was not due to pneumoconiosis does

not rest upon substantial evidence. They challenge the ALJ’s finding that the opinions of

Doctors Gregory Fino and Lawrence Repsher were credible. According to Hunt, both

physicians’ opinions were impermissibly based on premises inconsistent with the Black

Lung Benefits Act. In particular, it is claimed that Doctors Fino and Repsher do not believe

that coal dust exposure can cause Chronic Obstructive Pulmonary Disease (COPD); that

Doctor Fino does not believe that pneumoconiosis may progress; and that Doctor Repsher

does not believe a miner may be disabled by pneumoconiosis if x-ray evidence is negative.

       In Adams v. Peabody Coal Co., 816 F.2d 1116 (6th Cir. 1987), this court held that

under some circumstances a physician’s belief “‘may constitute grounds for rejecting his

medical opinion as inconsistent with congressional intent and the spirit of the Act.’” Id. at
(No. 04-3723)                               -3-

1119 (citation omitted). To mandate rejection as a matter of law, the physician’s bias must

“‘foreclose all possibility’” of a medical fact recognized by the Black Lung Benefits Act and,

even then, it is only “‘when the physician’s predisposed belief forms the primary basis for

his conclusion . . . that the physician’s opinion may be discredited due to improper bias.’”

Id. (citations omitted). When examined in light of the evidence produced at the hearing,

and the high threshold this standard sets for rejection of a physician’s opinion, Hunt’s

claims regarding Doctors Fino and Repsher are unsustainable.

       Hunt and the DOL argue that Doctors Fino and Repsher take as a premise that coal

dust cannot cause COPD, a position that contradicts the language of 20 C.F.R. §

718.201(a)(2). This regulation holds “‘Legal pneumoconiosis’ includes . . . any chronic

restrictive or obstructive pulmonary disease arising out of coal mine employment.” 20

C.F.R. § 718.201(a)(2) (emphasis added). Both Doctors, however, discussed coal dust as

a possible cause of COPD. Doctor Fino stated that “coal dust exposure . . . can cause

obstructive lung disease.” (Emphasis added.) Doctor Repsher, meanwhile, stated that

“inhalation of coal mine dust . . . can cause . . . chronic airways obstruction.” (Emphasis

added.)

       Neither of the physician’s statements “foreclose all possibility” of coal dust causing

COPD; rather, they merely contemplate what is likely and what, as Doctor Repsher said,

“would be extraordinarily unusual.” Characterizing coal dust as unlikely to cause Bennett

Hunt’s COPD is a far cry from calling it incapable of causing it. Moreover, Doctors Fino and

Repsher give other reasons for their conclusion that Mr. Hunt’s disability did not result from

pneumoconiosis, such as his normal lung volumes, x-ray evidence, and the fluctuation of

his blood gases. Even if, as Hunt argues, Doctors Fino and Repsher are biased in general
(No. 04-3723)                               -4-

against Black Lung claimants and tend to favor employers in these cases, the ALJ,

following Adams, could reasonably have decided to credit their opinions in this case,

provided the physicians’ anti-claimant bias was not the primary basis for their opinions.

       The DOL’s claim that Doctor Fino does not accept that pneumoconiosis may

progress after a coal miner no longer has exposure to coal dust is contradicted by the

record. The DOL points to the fact that during the comment period prior to the enactment

of 20 C.F.R. § 718.201(c), the DOL discussed and rejected Doctor Fino’s position that

simple pneumoconiosis cannot progress after coal dust exposure ceases. 65 Fed. Reg.

79,970 (Dec. 20, 2000). Be that as it may, Doctor Fino has testified on cross-examination

in this case that pneumoconiosis “may be” progressive. For purposes of substantial

evidence review of the ALJ’s decision, we cannot ignore that Doctor Fino’s evidence

presented at trial is a more recent, oath-bound statement of his position.

       The DOL also argues that Doctor Repsher believes a miner could not be disabled

by pneumoconiosis if his x-rays were negative or showed only simple pneumoconiosis.

This claim persists, despite the fact that Doctor Repsher specifically stated that this very

thing is “certainly possible . . . , but it hasn’t been reported.” We are asked to understand

the meaning of the word “possible” here as having only the thinnest separation from its

opposite, such that, in the lexicon of any reasonable person, it would really mean “virtually

impossible.” The merits of this argument are less than obvious, and while the linguistic

point is superficially impressive, it is not persuasive, especially since we review for

substantial evidence.

       Finally, we address the claim that, beyond improperly crediting the opinions of

Doctors Fino and Repsher, the ALJ also erred by not crediting the position of Doctors
(No. 04-3723)                               -5-

Baretta Casey and Maan Younes on the issue whether Bennett Hunt’s pneumoconiosis

caused his total disability. This circuit has rejected the claim, advanced here by Hunt, that

the opinion of a treating physician, such as Doctor Casey, is entitled to automatic

deference; rather, the treating physician’s opinion deserves only such deference as is

consistent with its persuasiveness. Peabody Coal Co. v. Odom, 342 F.3d 486, 492 (6th

Cir. 2003).

       Hunt also protests that the ALJ’s reason for giving less weight to Doctor Casey’s

opinion—the fact that she did not address Bennett Hunt’s smoking history—was

illegitimate. Hunt argues that, contrary to the ALJ’s statement, Doctor Casey did mention

the smoking history. While the ALJ’s statement about Doctor Casey failing to mention the

miner’s smoking history was incorrect, his decision to give less weight to Doctor Casey’s

opinion vis-a-vis the other experts is not “illegitimate,” particularly since Doctor Casey

seems to have mentioned Bennett Hunt’s smoking history only on cross-examination and

not in her letter or on direct examination. For all the evidence shows, the first time Doctor

Casey considered Bennett Hunt’s smoking history was when she was asked about it on

cross-examination. Doctors Fino and Repsher, by contrast, both mentioned the smoking

history in their letters and on direct examination.

       Doctor Younes, meanwhile, is cited as additional support for Doctor Casey’s opinion

because the two physicians agree, a fact that is said to establish “more than a scintilla” of

evidence that there is a connection between the total disability and the pneumoconiosis.

While the “more than a scintilla argument” is used appropriately by a party seeking to

confirm findings an ALJ makes, it is not, under our deferential standard of review, the

measure by which to determine findings the ALJ should have made, but did not. Hunt’s
(No. 04-3723)                             -6-

burden is to show that the ALJ’s decision is not supported by substantial evidence, a

burden we think she has not carried.

                                          III.

       For the foregoing reasons, we find that the opinion of the ALJ in this matter was

based upon substantial evidence and, therefore, we AFFIRM the decision of the BRB

upholding it.
