                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 10-3883
                                   _______________

                   PBS COALS, INC.; ROCKWOOD CASUALTY,
                                               Petitioners

                                           v.

              DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
                PROGRAMS, UNITED STATES DEPARTMENT OF
                         LABOR; RICHARD KELLY,
                                             Respondents
                             _______________

                      On Appeal from the Benefits Review Board
                              (BRB-1 : 09-0784 BLA)
                                 _______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 21, 2011

              BEFORE: BARRY, AMBRO and COWEN , Circuit Judges

                                  (Filed: July 6, 2011 )
                                   _______________

                                      OPINION
                                   _______________


COWEN, Circuit Judge.

      PBS Coals, Inc. and Rockwood Casualty Insurance Company (“PBS”) petitioned

for review of a decision by the Benefits Review Board affirming the ALJ’s decision to
award benefits to Richard Kelly pursuant to the Black Lung Benefits Act, 30 U.S.C. §

901, et seq. We will deny this petition for review.

                                             I.

       Kelly, a former miner, filed the current claim for benefits on January 25, 2002.

Following a series of rulings by both the ALJ and the Benefits Review Board, the ALJ

ultimately granted his claim in a decision dated July 24, 2009.

       As the ALJ indicated, the Benefits Review Board, in a decision dated April 7,

2009, vacated his April 14, 2008 decision denying benefits. The Benefits Review Board

stated that the ALJ erroneously found that the opinions of Drs. Schaaf and Begley, which

supported Kelly’s claim, were based on generalities. The ALJ noted that the Benefits

Review Board vacated his “finding that the existence of legal pneumoconiosis had not

been established at [20 C.F.R.] § 718.202(a)(4)” and remanded for further consideration

of the opinions offered by these two doctors. (A14-A15.) The ALJ was also directed to

“reconsider whether the opinion of Dr. Begley is entitled to enhanced weight due to his

status as the miner’s treating physician pursuant to [20 C.F.R.] § 718.104(d), examine the

validity of Dr. Fino’s opinion [supporting PBS’s position that Kelly did not suffer from

legal pneumoconiosis] and determine whether Dr. Fino adequately explained the basis for

his conclusion, and address the comparative credentials of Drs. Fino, Schaaf, and Begley,

the explanation for their conclusions, the documentation underlying their medical

judgments, and . . . explain my credibility determinations.” (A15). “Finally, the Board

ruled that if I [the ALJ] determined that the miner has pneumoconiosis, I must decide


                                             2
whether his pneumoconiosis is a substantially contributing cause of his total disability

under [20 C.F.R.] § 718.204(c).” (Id.)

       According to the ALJ, the applicable regulations define legal pneumoconiosis as

any chronic lung disease or impairment arising out of coal mine employment. This

definition is met if the disease or impairment is significantly related to, or is substantially

aggravated by, dust exposure from coal mine employment. The ALJ found that “Dr.

Schaaf and Dr. Begley gave convincing reasons for determining that the miner’s totally

disabling pulmonary impairment was due to both his cigarette smoking and coal mine

dust exposure.” (A16.) According to the ALJ, the two doctors explained that there was

no way to exclude coal mine dust exposure as a cause of Kelly’s condition. The ALJ

acknowledged that Dr. Fino attributed Kelly’s impairment exclusively to smoking based

on his extensive smoking history as well as the presence of hypercarbia (the elevation of a

person’s carbon dioxide level). Nevertheless, the ALJ determined that “his opinion is

couched in generalities and he failed to provide a convincing explanation for excluding

the miner’s coal mine dust exposure as a significant cause or substantial aggravation of

his pulmonary disease.” (Id.) While all three doctors are board certified, possess

comparable credentials, and offered reasoned and documented opinions, the ALJ found

that the opinions of Drs. Schaaf and Begley were better reasoned and thereby entitled to

greater weight than the opinion of Dr. Fino. The ALJ also accorded more weight to Dr.

Begley’s opinion because he rendered a well-reasoned opinion, had been treating Kelly’s




                                               3
pulmonary condition for eighteen months, evaluated him on five or six occasions over

this time period, and performed chest x-rays, spirometry, and pulmonary evaluations.

       Having found, by a preponderance of the evidence, the existence of legal

pneumoconiosis, the ALJ next considered the question of total disability causation. He

again found that Drs. Schaaf and Begley reasonably opined that Kelly’s legal

pneumoconiosis constituted a substantial contributory cause of his total disability and

accorded more weight to their respective opinions than to the contrary opinion of Dr.

Fino. The ALJ added that Dr. Fino’s “opinion on disability causation can not be given

any weight as he did not diagnose either clinical or legal pneumoconiosis.” (A17

(citations omitted).)

       PBS appealed, but the Benefits Review Board upheld the ALJ’s ruling in a per

curiam decision issued on August 31, 2010. It specifically affirmed: (1) “the

administrative law judge’s permissible conclusion that the opinions of Drs. Begley and

Schaaf outweigh the opinion of Dr. Fino, and that, therefore, claimant has established the

existence of legal pneumoconiosis by the preponderance of the reasoned medical opinion

evidence, pursuant to 20 C.F.R. § 718.202(a)(4)” (A10); and (2) the ALJ’s determination

under 20 C.F.R. § 718.204(c) “that legal pneumoconiosis is a substantially contributing

cause of claimant’s total disability” (A11).

                                               II.




                                               4
       PBS challenges the ALJ’s ruling in favor of Kelly on a number of grounds.1

However, like the Benefits Review Board, we determine that this ruling was consistent

with the applicable legal principles and supported by substantial evidence in the record.

       PBS argues that the ALJ committed reversible error because his findings on July

24, 2009 regarding Dr. Fino’s opinion “were completely opposite of the conclusions and

findings” in his April 14, 2008 decision. (Petitioner’s Brief at 14.) It goes on to attack

the ALJ’s findings that this doctor offered an opinion couched in generalities and

otherwise failed to provide a convincing explanation for excluding Kelly’s coal mine dust

exposure as a cause of his pulmonary disease. Nevertheless, the Benefits Review Board

appropriately observed that the ALJ was no longer bound by his prior findings of fact

because these findings had been vacated in the Benefits Review Board’s own decision of

April 7, 2009. Especially in light of the applicable “substantial evidence” standard of

review, we also agree with the Benefits Review Board that the ALJ permissibly found

that Dr. Fino failed to provide a convincing explanation for his opinion that coal mine

dust exposure did not cause, contribute to, or otherwise aggravate Kelly’s condition.

       We likewise must reject PBS’s contentions with respect to the opinions offered by

Drs. Begley and Schaaf and the weight accorded to these opinions by the ALJ.


1
   The ALJ and the Benefits Review Board possessed jurisdiction over this matter
pursuant to 30 U.S.C. § 932(a) and 33 U.S.C. § 921(b). We have jurisdiction under 33
U.S.C. § 921(c). As PBS acknowledges, “this Court must review the record and
determine whether the ALJ’s findings were [rational], consistent with applicable law and
supported by the substantial evidence of the record considered as a whole.” (Petitioner’s
Brief at 13.) Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. See, e.g., Soubik v. Dir., OWCP¸ 366 F.3d
                                              5
Substantial evidence in the record supported the characterization of these opinions as

well-reasoned and adequately documented. Specifically, both Drs. Begley and Schaaf

were aware of Kelly’s lengthy history of smoking. The Benefits Review Board

accordingly pointed out that it “previously rejected employer’s contention that Dr. Schaaf

did not have an accurate understanding of claimant’s smoking history” in its October 24,

2007 opinion and that PBS “has not set forth any valid exception to the law of the case

doctrine.” (A10 (citation omitted).) It also properly disposed of PBS’s assertion that Dr.

Begley was not aware of the actual extent of Kelly’s coal mine dust exposure by noting

“that, in his prior decision dated April 14, 2008, the administrative law judge specifically

found that Dr. Begley had an accurate understanding of claimant’s coal mine employment

history, and that finding has not been disturbed on appeal.” (A9 (citation omitted).)

Finally, the ALJ permissibly accorded greater weight to Dr. Begley’s otherwise well-

reasoned opinion because, among other things, he had been treating Kelly for more than a

year. See, e.g., Soubik, 366 F.3d at 235 (“It is well-established in this circuit that treating

physicians’ opinions are assumed to be more valuable than those of non-treating

physicians.” (citing Mancia v. Dir., OWCP, 130 F.3d 579, 590-91 (3d Cir. 1997))).

       Finally, PBS takes issue with the ALJ’s determination regarding total disability

causation, specifically challenging his conclusion that Dr. Fino’s opinion on this question

could not be given any weight because he did not diagnose either clinical or legal

pneumoconiosis. However, it appears that the ALJ did not thereby commit any reversible


226, 233 (3d Cir. 2004). We exercise plenary review over questions of law. See, e.g., id.
                                               6
error. See, e.g., id. at 234 (“Common sense suggests that it is exceedingly difficult for a

doctor to properly assess the contribution, if any, of pneumoconiosis to a miner’s death if

he/she does not believe it was present.”). In any case, we have already concluded that the

ALJ appropriately accorded more weight to the opinions of Drs. Begley and Schaaf than

to Dr. Fino’s opinion. As the Appeals Review Board noted, the ALJ then “rationally

relied on their opinions, that claimant’s totally disabling impairment is due, in part, to

coal dust exposure, to find that claimant is totally disabled due to legal pneumoconiosis.”

(A10 (citations omitted).)

                                             III.

       For the foregoing reasons, we will deny the petition for review.




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