In the
United States Court of Appeals
For the Seventh Circuit

Nos. 95-3291, 00-1449 & 00-2788

Peabody Coal Company and
Old Republic Insurance Company,

Petitioners,

v.

Jane W. McCandless and Director, Office
of Workers’ Compensation Programs,

Respondents.

Petitions to Review Orders of the
Benefits Review Board, Department of Labor.

Argued November 30, 2000--Decided June 29, 2001



  Before Flaum, Chief Judge, and Easterbrook
and Rovner, Circuit Judges.

  Easterbrook, Circuit Judge. When he died
of heart failure in 1991 at the age of
60, Elwood McCandless was afflicted with
cancer and emphysema in addition to his
cardiac and circulatory diseases.
Elwood’s widow, Jane, contends that he
also was disabled by coal workers’
pneumoconiosis as a result of more than
25 years’ exposure to dust in the mines.
Many x-rays taken over the last decade of
Elwood’s life revealed little evidence of
black lung disease. But an autopsy is the
best way to obtain information that will
decide the question, see Peabody Coal Co.
v. Director, OWCP, 972 F.2d 178, 182 (7th
Cir. 1992) (Railey), and pathologist
Henry W. Bockelman performed one on
Elwood’s body. Dr. Bockelman attributed
Elwood’s death to vascular disease,
myocardial fibrosis, and adenocarcinoma,
adding that Elwood also exhibited
"prominent anthracotic pigment deposition
with reactive fibrosis and polarizable
debris, suggestive of silica and
interstitial fibrosis fitting under Type
III lesion", which he believed
demonstrated pneumoconiosis. Five other
physicians, all board-certified in their
specialties, examined the tissue slides
that Bockelman had created and concluded
that they show no evidence of
pneumoconiosis. One of these (Jerome
Kleinerman, a pathologist) added that
Bockelman’s analysis depended on views
expressed in a 1981 article that had been
discredited in the medical literature,
and that as a result Bockelman’s
conclusion is worthless.

  These divergent interpretations
presented a problem for the
administrative law judge. Lawyers are
uncomfortable with scientific
controversies--for good reason, because
legal training does not supply the tools
needed to resolve technical disputes.
Nonetheless, many statutes (of which the
Black Lung Benefits Act is an example)
make entitlements turn on scientific
knowledge, and the alj set about to deal
with the conflicting conclusions of these
physicians--but on legal rather than
medical grounds. The alj wrote:

I place greater weight on Dr.
Bockelman’s opinion because he
performed the actual autopsy . . .
and is a board-certified
pathologist. . . . The opinions of
Drs. Crouch, Kleinerman and Naeye
also merit weight because they too
are board-certified pathologists and
appeared to provide well-reasoned
explanations to discredit Dr.
Bockelman’s conclusion. Dr. Tuteur
is also a well-trained physician,
although not a pathologist. Placing
more weight on the opinion of the
pathologist who performed the
autopsy, as I have the leeway to
do, I find that the Claimant has
established pneumoconiosis pursuant
to [20 C.F.R.] sec.718.202(a)(2).

  There was a little more to the alj’s
conclusion: he relied on the fact that 2
out of 31 readings of the many x-rays had
been positive for pneumoconiosis, and
that other physicians who examined
Bockelman’s report (and perhaps some of
the evidence) found no errors in his
analysis. Later the Benefits Review Board
deemed the alj’s reliance on the positive
x-ray readings inappropriate, leaving
only the conclusions based on evidence
obtained during the autopsy. On that
score, the brb concluded, an alj is
entitled to favor the findings of an
autopsy prosector without getting into a
scientific debate about the quality of
the prosector’s reasoning.
  Although we understand why the alj and
the brb wanted to avoid the medical
controversy, their approach does not
conduce to finding the truth. A
scientific dispute must be resolved on
scientific grounds, rather than by
declaring that whoever examines the
cadaver dictates the outcome. See Wilder
v. Chater, 64 F.3d 335 (7th Cir. 1995);
Sahara Coal Co. v. Fitts, 39 F.3d 781
(7th Cir. 1994). If there were a medical
reason to believe that visual scrutiny of
gross attributes is more reliable than
microscopic examination of tissue samples
as a way to diagnose pneumoconiosis, then
relying on the conclusions of the
prosector would be sensible. But neither
the alj nor the brb made such a finding.
The mine operator contends--and on this
record we have no reason to doubt--that
examining tissue samples under a
microscope, and testing them for silica,
is the best way to diagnose black lung
disease. What we have, therefore, is a
conflict among physicians based on their
analysis of the tissue samples.
Bockelman’s visual examination of the
whole lung played little or no role. The
alj and brb preferred the results of
Bockelman’s analysis of the slides just
because that analysis was done by the
prosector. This is not a rational ground
of decision. It is no more sensible than
saying that the results of the
plaintiffs’ expert in Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999), had to
be accepted just because he examined the
supposedly defective tire. Yet the Court
held in Kumho that junk science cannot be
rescued by some principle such as a
doctrine that courts must receive the
views of any expert who does hands-on
work. Bad science is bad science, even if
offered by the first expert to express a
view. In Kumho the Court held that the
views of the plaintiffs’ tire-failure
analyst were too unreliable to be
admissible in evidence. Under the
approach of the alj and the brb in this
case, however, those same views not only
would be admissible but also would trump
the conclusions of five other experts who
supplied scientifically sound analyses
but did not manipulate the tire.

  The approach used by the alj and brb in
this case appears to be a vestige of the
"true doubt rule," under which a conflict
in the evidence was resolved in the
miner’s favor. Director, OWCP v.
Greenwich Collieries, 512 U.S. 267
(1994), holds the true-doubt rule invalid
under the Administrative Procedure Act,
because it relieves the claimant of his
burden of persuasion. See also Allentown
Mack Sales & Service, Inc. v. NLRB, 522
U.S. 359 (1998). The preference for the
conclusions of the autopsy prosector has
all of the true-doubt rule’s vices
without its redeeming virtue (for the
true-doubt rule at least required true
doubt, an equipoise in the evidence,
while the preference for the prosector’s
views can overcome all of the
scientifically valid evidence in the
record). Preferring the prosector’s
conclusion, for no better reason than
that the prosector wields the scalpel, is
about as sensible as preferring in an
antitrust case the conclusions of
whatever expert devoted the most time to
preparing his report. Cf. In re Brand
Name Prescription Drugs Antitrust
Litigation, 186 F.3d 781, 786 (7th Cir.
1999) (failure to conduct an in-depth
study of an industry, and completion of
an analysis quickly, are not valid
grounds for excluding expert testimony).

  Since Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579
(1993), courts have understood the
importance of ensuring that supposedly
scientific testimony meets minimum
scientific standards of accuracy. See
also Weisgram v. Marley Co., 528 U.S.
440, 445 (2000); General Electric Co. v.
Joiner, 522 U.S. 136 (1997). Our dispute
does not entail a contest of
admissibility. But it makes little sense
to use scientific standards in performing
the gatekeeping function and then permit
the dispute on the merits to be resolved
by arbitrary considerations, such as who
wore the latex gloves and or had superior
credentials. Daubert does not apply
directly in black lung cases, because it
is based on Fed. R. Evid. 702, which
agencies need not follow. Agencies relax
the rules of evidence because they
believe that they have the skill needed
to handle evidence that might mislead a
jury. See Richardson v. Perales, 402 U.S.
389 (1971). They have a corresponding
obligation to use that skill when
evaluating technical evidence. Neither
the alj nor the brb did this, however;
both avoided the medical dispute by
adopting a non-medical rule that
physicians who work in white smocks are
more reliable than physicians who do
their work in the laboratory. As that
preference has no apparent medical basis-
-and as it contradicts many decisions
requiring agencies to resolve scientific
controversies on the merits rather than
through legal legerdemain--the result
cannot stand. See, e.g., Railey, 972 F.2d
at 182; Stephens v. Heckler, 766 F.2d 284
(7th Cir. 1985). An agency must act like
an expert if it expects the judiciary to
treat it as one. See Chicago Board of
Trade v. SEC, 187 F.3d 713 (7th Cir.
1999); Bechtel v. FCC, 10 F.3d 875 (D.C.
Cir. 1993). Railey is directly on point;
it holds that the alj may not
automatically credit the conclusions of
an autopsy prosector but must supply a
valid rationale for adopting them. Here
the only rationale was--that Bockelman
was the prosector. That’s just a
restatement of the rule that Railey
disapproved.

  We are not authorized to resolve the
medical dispute as an initial matter, so
the case must be remanded to the agency
for reconsideration. Two other disputes
lurk in this record, and we mention them
briefly in an effort to head off further
troubles. If Elwood had pneumoconiosis,
the next question is whether that disease
was disabling. Given his many other
ailments, it is hard to see how it could
have been, for the other problems appear
to be sufficient to cause disability
(implying that pneumoconiosis was not a
necessary condition of disability). See
Freeman United Coal Mining Co. v. Foster,
30 F.3d 834 (7th Cir. 1994); Freeman
United Coal Mining Co. v. Stone, 957 F.2d
360 (7th Cir. 1992). The record contains
many medical assessments attributing
Elwood’s health problems to heart
disease, cancer, and emphysema. The alj
found all of these opinions wanting
because they were not shared by the
physician who treated Elwood during his
final three years. Yet we have
disapproved any mechanical rule that the
views of a treating physician prevail.
See Consolidation Coal Co. v. OWCP, 54
F.3d 434, 438 (7th Cir. 1995). "[I]t is
irrational to prefer the opinion of the
treating physician, who is often not a
specialist, over the opinion of a
nontreating specialist solely because one
physician is the treating physician."
Railey, 972 F.2d at 180 (emphasis in
original). Treating physicians often
succumb to the temptation to accommodate
their patients (and their survivors) at
the expense of third parties such as
insurers, which implies attaching a
discount rather than a preference to
their views.

  The alj must have a medical reason for
preferring one physician’s conclusion
over another’s. In this case the alj
recognized that the treating physician’s
views may not be accepted unless there is
a good reason to believe that they are
accurate. The alj thought that he had such
a reason: Dr. Gelhausen was Elwood’s
treating physician, and treating
physicians are (by definition) familiar
with patients’ medical condition during
life. That’s just a restatement of the
preference. Circular reasoning cannot
avoid the rule. If there is a reason why
Dr. Gelhausen’s observations have medical
significance, that’s one thing; but the
fact that Gelhausen examined Elwood
McCandless before his death does not
demonstrate that Elwood was disabled by
pneumoconiosis. Dr. Gelhausen’s beliefs
must be supported by medical reasons if
they are to be given legal effect.

  The other potentially recurring subject
is attorneys’ fees. The alj calculated the
fees of Jack N. VanStone, who represents
Jane McCandless, at $200 per hour. The
mine operator objected, observing that
this hourly rate exceeds what VanStone
charges his paying clients. (At oral
argument VanStone conceded that the
highest rate he has ever charged a paying
client is $150 per hour.) Because the
rate chargeable against the mine operator
must be market-based, see Gusman v.
Unisys Corp., 986 F.2d 1146, 1150 (7th
Cir. 1993), without a premium for the
contingent nature of the compensation,
see Burlington v. Dague, 505 U.S. 557
(1992), the mine operator asked that
VanStone’s rate be reduced. See also Cole
v. Wodziak, 169 F.3d 486, 488-89 (7th
Cir. 1999); Eirhart v. LibbyOwensFFr
Co., 996 F.2d 846 (7th Cir. 1993). The brb
described the mine operator’s position,
added "Employer’s objection is noted",
and then immediately stated that "the
hourly rate of $200.00 [is] reasonable in
light of the services performed." The
Board never addressed the operator’s
contention that no rate exceeding the
attorney’s normal market price can be
deemed "reasonable." For that matter,
neither the alj nor the brb gave any
reason for deeming $200 a "reasonable"
rate. It is a number plucked from a hat.
Like the other critical issues resolved
by the agency in this case, this must be
reexamined.

  The Board’s order is vacated, and the
case is remanded for further proceedings
consistent with this opinion.
