                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-1953



CONSOLIDATION COAL COMPANY,

                                                         Petitioner,

           versus


VIOLA M. NECESSARY, widow of Alvin           H.
Necessary, deceased; DIRECTOR, OFFICE        OF
WORKERS’ COMPENSATION PROGRAMS,

                                                        Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(05-223-BLA)


Argued:   December 5, 2007                  Decided:   April 7, 2008


Before MICHAEL and GREGORY, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.


Petition denied by unpublished per curiam opinion.


ARGUED: Kathy Lynn Snyder, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. Frederick K. Muth, HENSLEY, MUTH,
GARTON & HAYES, Bluefield, West Virginia; Barry H. Joyner, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Douglas A. Smoot, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. Jonathan L. Snare, Acting Solicitor
of Labor, Patricia M. Nece, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             Consolidation Coal Company (Consol) petitions for review

of an order of the Department of Labor’s Benefits Review Board

(BRB) affirming the decision of an administrative law judge (ALJ)

to award survivor’s black lung benefits to Viola Necessary (Mrs.

Necessary), the widow of Alvin Necessary (Mr. Necessary).                     Consol

argues that the ALJ erred by (1) crediting the opinion of the

pathologist who conducted the autopsy and (2) misapplying the Black

Lung   Benefit    Act’s    evidence-limiting      regulations.          We    affirm

because we conclude that (1) the ALJ’s benefits determination was

supported by substantial evidence in the record and (2) Consol

waived its arguments about the application of the regulations by

failing to raise them before the BRB.



                                         I.

             Mr. Necessary worked as a coal miner for twenty-four

years.    During his lifetime he submitted three claims under the

Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (the Act), each of

which was denied.      Mr. Necessary died on February 3, 2001, at age

eighty.      Eduardo      T.   Tolosa,   M.D.,   Mr.      Necessary’s    treating

physician, completed his death certificate, identifying the cause

of   death   as   acute    bronchopneumonia      as   a   consequence        of   coal

workers’ pneumoconiosis and emphysema.                 Mr. Necessary’s widow




                                         3
submitted a timely application for survivor’s benefits under the

Act.

             At the hearing before the ALJ, the parties stipulated

that Mr. Necessary suffered from coal workers’ pneumoconiosis

caused by coal mine employment and that Consol was the responsible

coal operator.        The parties agreed that the remaining issue was

whether   coal       workers’    pneumoconiosis    caused   or    hastened     Mr.

Necessary’s death.        During the hearing the ALJ allowed all of the

evidence from Mr. Necessary’s lifetime black lung claims to be

included in the record with no objection from either party.                    The

ALJ then excluded certain documentary evidence offered by Consol,

including two of its three reviews of autopsy tissue slides, as

exceeding      the    evidentiary    limitations    imposed      by   20   C.F.R.

§ 725.414.

            After reviewing the evidence, the ALJ determined that Mr.

Necessary’s death was hastened by his pneumoconiosis and awarded

Mrs. Necessary survivor’s benefits.           In reaching this conclusion

the ALJ relied primarily on the opinion of Alex P. Racadag, M.D.,

the board certified pathologist who conducted an autopsy of Mr.

Necessary’s lungs.         The ALJ also found support in Dr. Tolosa’s

deposition testimony, introduced into evidence by Consol.                  The ALJ

rejected other evidence offered by Consol, including the opinion of

Stephen   T.    Bush,    M.D.,    who   examined   the   autopsy      slides   and




                                         4
concluded that pneumoconiosis had not hastened Mr. Necessary’s

death.

            Consol appealed the decision to the BRB, arguing that (1)

the evidence-limiting regulations were invalid, or, alternatively,

Consol’s excluded evidence should have been admitted under the good

cause exception in the regulations, 20 C.F.R. § 725.956(b)(1), and

(2) the award was not supported because Dr. Racadag’s opinion was

equivocal and the ALJ automatically credited his opinion because he

was the autopsy prosector.          The BRB rejected Consol’s evidentiary

arguments, but it remanded to the ALJ with instructions to provide

a more detailed explanation of his decision to credit the opinion

of Dr. Racadag.      On remand the ALJ issued a new opinion further

explaining his rationale for crediting Dr. Racadag, and upon a

second appeal the BRB affirmed in a two to one vote.                    Consol then

petitioned to this court for review.            The Director of the Office of

Workers’ Compensation Programs (the Director) and Mrs. Necessary

responded.



                                         II.

            To qualify for benefits under the Act, Mrs. Necessary

must     demonstrate       that    (1)    Mr.    Necessary       suffered       from

pneumoconiosis,      (2)     the   pneumoconiosis    arose       from    coal   mine

employment,    and     (3)   the   pneumoconiosis     was    a    “substantially

contributing cause or factor leading to” his death.                      20 C.F.R.


                                          5
§ 718.205; see also Bill Branch Coal Corp. v. Sparks, 213 F.3d 186,

190 (4th Cir. 2000).             A “substantially contributing cause” is

defined as a condition hastening the miner’s death.                   20 C.F.R.

§ 718.205(c)(5). The claimant must prove each of these elements by

a preponderance of the evidence.             Piney Mountain Coal Co. v. Mays,

176 F.3d 753, 757 (4th Cir. 1999) (citing 5 U.S.C. § 556(d)).

               In making factual determinations, “the ALJ must explain

which evidence is relevant and why he credited the evidence he

did.”    Perry v. Mynu Coals, Inc., 469 F.3d 360, 363 (4th Cir. 2006)

(citing Island Creek Coal Co. v. Compton, 211 F.3d 203, 208-09 (4th

Cir. 2000) and Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,

439     (4th    Cir.   1997)).      We   must    uphold   the    ALJ’s   factual

determinations if they are supported by substantial evidence in the

record.        Id.   Substantial evidence is of “sufficient quality and

quantity ‘as a reasonable mind might accept as adequate to support’

the finding under review.”           Piney Mountain Coal Co., 176 F.3d at

756 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).                We

review legal conclusions de novo.             Perry, 469 F.3d at 363.

               Consol raises two arguments on appeal.           First, it argues

that the ALJ erred in crediting Dr. Racadag’s opinion.                   Second,

Consol contends that the ALJ erred in his application of the Act’s

evidence-limiting regulations.           We discuss these contentions in

turn.




                                         6
                                III.

                                 A.

          Consol first argues that the ALJ erred in crediting Dr.

Racadag’s opinion because the opinion was unreasoned and equivocal.

Consol relies on our decision in United States Steel Mining Co. v.

Director, Office of Workers’ Compensation Programs, 187 F.3d 384

(4th Cir. 1999).   In that case the ALJ awarded survivor’s benefits

based on a doctor’s statement that “‘[i]t is possible that death

could have occurred as a consequence of [the miner’s] pneumonia

superimposed upon his . . . pneumoconiosis.’”     Id. at 387.   In his

report the doctor admitted that he did not have any information

concerning the circumstances of the miner’s death.     Id. at 390.   We

held that, given the “total absence of any medical evidence”

linking the miner’s pneumoconiosis with his death, the doctor’s

opinion was pure speculation and could not support the ALJ’s award.

Id. at 391.

          While a doctor’s opinion must rely on medical evidence,

we also recognize that a doctor is under no obligation to parse

words.   Medical judgments regarding cause of death will often

involve some degree of uncertainty, and it is proper -- and

commendable -- for a doctor to be candid about this reality.    Thus,

in Piney Mountain Coal Co. v. Mays we affirmed an award of benefits

despite the doctor’s use of the conditional “could” in rendering

his opinion.   176 F.3d at 763-64.    Like in U.S. Steel we recognized


                                 7
that the doctor’s specific statements could not be viewed in

isolation, but instead must be understood in the context of the

information known to him and in light of his full report.               Piney

Mountain Coal Co., 176 F.3d at 763.           Similarly, in Perry v. Mynu

Coals, Inc. we held that an ALJ erred by summarily dismissing a

doctor’s opinion because the doctor admitted that he was not “one-

hundred percent sure” of his conclusion.            469 F.3d at 365-66.   We

noted that “refusal to express a diagnosis in categorical terms is

candor, not equivocation, and we are of opinion that it enhances

rather than undermines [the doctor’s] credibility.”            Id. at 366.

            Mrs. Necessary submitted two items of evidence from Dr.

Racadag. First, she introduced his autopsy report, which described

the autopsy procedure, his observations, and his conclusion that

coal worker’s pneumoconiosis and other conditions contributed to

Mr. Necessary’s morbidity and demise.          Second, she introduced Dr.

Racadag’s deposition testimony.           Dr. Racadag testified that Mr.

Necessary     had   a   “moderate”   degree    of    simple   coal   workers’

pneumoconiosis with micronodules, which contributed to his death.

J.A. 197.   During Dr. Racadag’s deposition the following exchange

took place:

          Q: So in this case, when you say the coal workers’
     pneumoconiosis contributed to his death, I mean, are you
     speculating that?

          A: Yes.   It’s a speculation.    That’s why I said
     “probably contributed,” because I believe there is no 100
     percent in medicine. . . . I think it’s an interplay of
     several factors, rather than just one.

                                      8
J.A. 210-11.    Shortly thereafter Dr. Racadag affirmed that he had

been providing answers to “a reasonable degree of medical and

scientific certainty.”      J.A. 212.

            The ALJ’s decision to credit Dr. Racadag’s statements is

one that we review under the “substantial evidence” standard.

Piney Mountain Coal Co., 176 F.3d at 764.                When we consider the

ambiguous statements highlighted by Consol in the context of Dr.

Racadag’s entire report and testimony, we are not persuaded that

“no ‘reasonable mind’ could have interpreted and credited the

doctor’s opinion as the ALJ did.”           Id.     Instead, as the ALJ found,

Dr. Racadag relied on his experience and his gross and microscopic

observations of the lungs in reaching his conclusion.

            Dr. Racadag weighed the lungs, noting that the right lung

weighed 50 grams more than the left.                 He noted brown to black

coloration with black-gray mottling and black hilar lymph nodes

measuring up to one centimeter.         Dr. Racadag also noticed pleural

adhesions, meaning that “some areas of the lung surface were

plastered   against   the   thoracic        wall.”       J.A.    194.     In    his

microscopic examination, he described various “aggregates of black

pigmented    macrophages    some   of       which    [were]     associated     with

fibrocollagenous reaction,” coal nodules with obvious fibrosis,

emphysematous    changes,    thickening        of    tissues,     and   scattered

inflamation.    J.A. 157.    In his deposition testimony Dr. Racadag

explained how these observations led him to his conclusions.


                                        9
          As the ALJ also noted, Dr. Racadag clarified that he was

giving his opinion to a reasonable degree of medical certainty.

Like in Perry, where the doctor also refused to state that he was

one-hundred    percent     certain,   Dr.    Racadag’s   admission   of    the

uncertainty inherent in medical evaluation could certainly be

interpreted as a testament to his candor rather than a lack of

conviction, and it was well within the ALJ’s discretion to credit

his opinion.

                                      B.

          Consol also argues that the ALJ “mechanically credited

Dr. Racadag’s opinion because his role as a prosector allowed him

to view the lungs.”       Pet’r’s Br. 18.     This challenge is limited to

the   ALJ’s    decision     to   credit     Dr.   Racadag’s   opinion     that

pneumoconiosis affected ten to twenty percent of Mr. Necessary’s

lungs, rather than Dr. Bush’s opinion that pneumoconiosis affected

only five percent of the lungs at the time of death.          While this is

a close case, we affirm the ALJ’s decision because his opinion was

carefully reasoned and based on evidence in the record.

          We have held that an ALJ may not automatically credit the

opinions of an autopsy prosector solely because he “was the only

physician to examine the whole body near the time of death.”              Bill

Branch Coal Corp., 213 F.3d at 192.          We have counseled caution in

this area because automatic crediting of the autopsy prosector in

every case would foreclose an opposing party from the opportunity


                                      10
to present its evidence.         Our holding in Bill Branch follows the

uncontroversial rule that an ALJ’s opinion must be reasoned and

supported by the record.         Id. at 190.     In keeping with this rule,

we have also recognized that the ALJ may credit the autopsy

prosector’s opinion when such crediting is supported by the record

and adequately explained.        See Perry, 469 F.3d at 366; Bill Branch

Coal Corp., 213 F.3d at 192 n.6.         In a given case, for example, the

evidence    may   allow    the    ALJ   to   determine   that   the   autopsy

prosector’s ability to conduct a gross examination of the miner’s

lungs places the prosector in a better position to assess the

extent     to   which     the    lung   tissue    had    been   affected    by

pneumoconiosis.

            In this case the ALJ restated the rule in Bill Branch and

noted that he was required to resolve the dispute created by Dr.

Bush’s and Dr. Racadag’s conflicting interpretations of the lungs’

impairment.     The ALJ then determined that Dr. Racadag had a better

opportunity to assess the limited issue in the case -- the total

extent of pneumoconiosis in the lung -- because he was able to view

the gross anatomy of the lung and see the actual effects of the

disease, as well as examine the lung tissue microscopically.               Dr.

Bush, on the other hand, only examined slides comprised of samples

taken from the lungs and did not examine the lung as a whole.               In

reaching his conclusion, the ALJ relied on Dr. Racadag’s testimony

that the opportunity to conduct a gross examination as well as a


                                        11
microscopic examination better enabled him to understand the extent

of the disease.   The ALJ did not rely solely on Dr. Racadag’s role

as autopsy prosector; he also carefully considered the credibility

of Dr. Bush’s competing evaluation and concluded that it was

insufficiently documented and reasoned. As the ALJ noted, Dr. Bush

failed to explain the scientific basis for his determination that

the extent of pneumoconiosis was insufficient to hasten death, but

instead seemed to apply “a mechanical standard.”           J.A. 372.

          The ALJ’s decision to credit Dr. Racadag’s assessment of

the extent of Mr. Necessary’s pneumoconiosis over Dr. Bush’s

assessment was reasoned and supported by the evidence. The ALJ was

required to resolve the dispute created by the contradictory

medical opinions, and he evaluated the record to determine which

opinion was best supported by the evidence.        Dr. Racadag testified

extensively about how his gross examination of the lungs aided him

in reaching his conclusions. In contrast, Dr. Bush made conclusory

statements that pneumoconiosis did not hasten Mr. Necessary’s

death.   While this is a close case, as we have said, we may not

replace the ALJ’s assessments with our own.

          We   conclude   that   the    ALJ’s   decision   to   credit   Dr.

Racadag’s opinion was supported by the evidence, and his opinion

supports the award of survivor’s benefits to Mrs. Necessary.




                                   12
                                 IV.

          Consol   also    raises    two   challenges   to   the   ALJ’s

evidentiary rulings.      For the reasons discussed below, we agree

with the Director that Consol has waived these arguments because it

failed to raise them before the BRB.

                                    A.

          Consol first argues that the ALJ erred by considering

evidence from Mr. Necessary’s three lifetime claims. Consol relies

on a recent BRB decision holding that under 20 C.F.R. § 725.309(d)

evidence from the living miner’s claims should not be automatically

included in the record for a survivor’s claim.      Keener v. Peerless

Eagle Coal Co., BRB No. 05-1008 BLA, 2007 WL 1644032, at *5-*6

(Jan. 26, 2007).   When the case was before the BRB, Consol argued

that the ALJ erred by failing to consider the miner’s lifetime

evidence -- an argument opposite to the one it raises today.

Consol acknowledges that it did not argue to the BRB that the

lifetime claims evidence should have been excluded, but it contends

that the Keener decision created new law that should change the

outcome in this case.   We disagree.     Keener did not create new law;

instead, it interpreted a regulation that was in existence when the

case was before the BRB.     See Betty B Coal Co. v. Dir., Office of

Workers’ Comp. Programs, 194 F.3d 491, 501 (4th Cir. 1999). Consol

thus had the opportunity to argue to the BRB that the ALJ erred by

considering the lifetime claims evidence.        Instead, it choose to


                                    13
advance the opposite argument.      Because the argument Consol raises

now was not raised before the BRB, and the BRB did not have an

opportunity   to   consider   it,   we   decline   to    consider   it   here.

See Armco, Inc. v. Martin, 277 F.3d 468, 476 (4th Cir. 2002).

                                    B.

          Consol also contends that the ALJ improperly excluded its

autopsy rebuttal evidence under 20 C.F.R. § 725.414(a)(3).               Again,

Consol relies on recent court decisions in support of its argument.

See Elm Grove Coal Co. v. Dir., Office of Workers’ Comp. Programs,

480 F.3d 278, 297-99 (4th Cir. 2007); Keener, 2007 WL 1644032, at

*2-*4. Again, we conclude that Consol failed to make this argument

before the BRB and has therefore waived it.

          In its first appeal to the BRB, Consol challenged the

ALJ’s application of the evidence-limiting regulations with respect

to the exclusion of several of its proffered items of evidence.             At

that time Consol made two related arguments.            First, Consol argued

that the evidence-limiting regulations were invalid under the Act,

the Administrative Procedures Act, and Supreme Court and Fourth

Circuit precedent.     Second, Consol argued that the evidence was

relevant and probative, and thus should be admitted under the good

cause exception to the regulations, 20 C.F.R. § 725.456(b)(1). The

BRB rejected each of these arguments.

          Before this court, Consol puts forth an alternative

argument for the first time, contending that the evidence should


                                    14
have been admitted as rebuttal evidence under the evidence-limiting

regulations.          Consol    cites     Keener’s       holding       that,        under

§ 725.414(a)(3), the responsible operator may submit an autopsy

slide review as its affirmative evidence and also, in rebuttal, an

additional report interpreting the claimant’s autopsy report. 2007

WL 1644032, at *2-*4.      Consol argues that Dr. Bush’s report should

have   been    admitted   as    its   affirmative    evidence      and    that       Dr.

Oesterling’s report, which analyzed Mr. Necessary’s medical reports

and his autopsy slides, should have been admitted as its rebuttal

evidence.      Consol concedes that it did not challenge the ALJ’s

application of § 725.414 before the BRB, but it contends that its

two arguments before the BRB somehow encompass its argument on

appeal. In essence, Consol argues that because our decision in Elm

Grove Coal Co. forecloses Consol’s challenges to the validity of

the regulations, it is now entitled to advance an alternative

argument regarding the application of those regulations.

              While   Consol    did     challenge    the    exclusion          of    Dr.

Oesterling’s report (and those of several other doctors) before the

BRB, it did so under substantively different arguments than the one

it raises before this court. The BRB carefully considered Consol’s

arguments     under   several    federal      statutes     and   the    good        cause

exception.      But the BRB had no opportunity to consider Consol’s

contention here that the ALJ made a legal error in his application

of § 725.414(a)(3).       It was Consol’s deliberate choice to focus on


                                         15
the validity and breadth of the regulations, rather than raise the

alternative argument that the ALJ misapplied the evidence-limiting

regulation.   As a result, we will not consider the argument that

Consol chose not to make before the BRB.   See Armco, Inc., 277 F.3d

at 476.

                             *   *    *

          For the foregoing reasons, Consol’s petition for review

is denied.

                                                    PETITION DENIED




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