                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1360



DANTE COAL COMPANY,

                                                           Petitioner,

           versus


DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
NORA JONES, on behalf of Stanley Jones,
Respondent,

                                                          Respondents.


On Petition for Review of an Order of the Benefits Review Board.
(03-278-BLA)


Argued:   October 25, 2005                 Decided:   January 26, 2006


Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.


Affirmed by unpublished opinion. Judge Gregory wrote the majority
opinion, in which Judge Wilkinson joined.    Chief Judge Wilkins
wrote a dissenting opinion.


ARGUED: William Steele Mattingly, JACKSON KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. James Hook, Waynesburg,
Pennsylvania, for Respondents. ON BRIEF: Ashley M. Harman, JACKSON
KELLY, P.L.L.C., Morgantown, West Virginia, for Petitioner.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
GREGORY, Circuit Judge:

        This appeal concerns a twenty-six-year-old dispute over the

award of black lung benefits to claimant Stanley Jones (“Jones”).

For the second time, Dante Coal Company (“Dante”) asks this Court

to reverse an order of the Benefits Review Board (the “Board”)

affirming an administrative law judge’s (“ALJ”) award of black lung

benefits to Jones.      Dante contends that the ALJ erred by failing to

reconsider fully all the pertinent evidence and by relying on a

revised definition of pneumoconiosis without allowing the parties’

experts to reevaluate the evidence.              Finding no error, we affirm

the Board’s decision.



                                     I.

                                     A.

     Jones, born on January 13, 1921, worked in the coal mines of

West Virginia for thirty-two years until he was laid off in 1981.

J.A. 286.      He also smoked cigarettes for nearly forty years, until

1978,    and   began   to   experience       respiratory   difficulties   while

working for Dante (formerly Badger Coal Company and Wolverine

Mining Company), his final coal mine employer.              J.A. 25.

     On October 19, 1979, Jones filed an application for lifetime

black lung benefits under Title IV of the Federal Coal Mine Health

and Safety Act of 1969, as amended, 30 U.S.C. §§ 901-945 (“Black

Lung Benefits Act” or the “Act”).                In his application, Jones


                                         2
asserted that he suffered from a coal dust-induced disorder called

pneumoconiosis.         As he filed his claim before April 1, 1980, the

effective date of the permanent regulations governing black lung

benefits, his claim must be adjudicated under interim regulations

found in 20 C.F.R. Part 727.1

       This case, adjudicated before three different ALJs, involves

a complicated procedural history, most of which is not relevant

here.        Accordingly,     we    limit     our   recitation      to    those      facts

pertinent to our discussion, beginning with the second ALJ’s denial

of Jones’s claim for benefits in 1997.                   Jones opted not to appeal

that       determination    and      instead,       he    filed     a    petition     for

modification under 20 C.F.R. § 725.310 based on new evidence. J.A.

30-31.        Section    725.310      provides      that    a   party     may   request

modification of the denial of benefits within one year of the

denial on the grounds that a change in conditions has occurred or

because      the   previous        decision     reflected       a   mistake     in    the

determination of a fact, or in the ultimate determination of the

claimant’s entitlement to benefits. 20 C.F.R. § 725.310(a) (1979);

see also Jesse v. Dir., OWCP, 5 F.3d 723, 725 (4th Cir. 1993).



       1
      Under the interim regulations, claimants with at least ten
years of coal mine employment are entitled to a presumption of
total disability due to pneumoconiosis if chest x-rays are positive
for pneumoconiosis, ventilatory studies yield qualifying results,
blood gas studies produce qualifying results, or if other medical
evidence, including the well-reasoned opinion of a medical doctor,
establishes the existence of a totally disabling respiratory or
pulmonary impairment. See 20 C.F.R. § 727(a)(1)-(4).

                                            3
      In support of his petition for modification, Jones submitted

an expert report from Dr. Roger Abrahams. Dante responded with the

medical reports of Drs. James Castle and Gregory Fino.                    All three

physicians   found     that    Jones    was    not    suffering    from     medical

pneumoconiosis,    which      “refers   to    the     lung   disease      caused    by

fibrotic reaction of the lung tissue to inhaled dust, which is

generally visible on chest x-ray films as opacities.”                      Hobbs v.

Clinchfield Coal Co., 917 F.2d 790, 791 (4th Cir. 1990). The

physicians, however, disagreed over whether Jones was suffering

from legal pneumoconiosis, a broader class of disorders.                      Legal

pneumoconiosis is “a chronic dust disease of the lung and its

sequelae, including respiratory and pulmonary impairments, arising

out of coal mine employment.”           30 U.S.C. § 902 (1979); see also

Hobbs, 917 F.2d at 791 (“Legal pneumoconiosis refers to all lung

diseases which meet the statutory or regulatory definition of being

any   lung   disease     which     is    significantly          related     to,     or

substantially     aggravated      by,       dust     exposure    in    coal       mine

employment.”).2      Additionally, all of the physicians found that


      2
      Legal pneumoconiosis “is not limited to, coal workers’
pneumoconiosis [i.e., medical pneumoconiosis], anthracosilicosis,
anthracosisanthro-silicosis,     massive     pulmonary    fibrosis,
progressive massive fibrosis silicosis, or silicotuberculosis
arising out of coal mine employment.” 20 C.F.R. § 727.202 (1979).
Rather, it has “a broad definition, one that effectively allows for
the compensation of miners suffering from a variety of respiratory
problems that may bear a relationship to their employment in the
coal mines.” Rose v. Clinchfield Coal Co., 614 F.2d 936, 938 (4th
Cir. 1980).    For example, it includes emphysema, asthma, and
chronic bronchitis, if triggered by coal mine employment. Hughes

                                        4
Jones had a pulmonary obstructive disorder, but disagreed as to

whether this disorder was due to the combined effects of coal mine

dust exposure and cigarette smoke or simply the latter.

                                    B.

     Jones relied on Dr. Abrahams’s opinion to demonstrate his

entitlement   to   a    presumption       of   total   disability    due   to

pneumoconiosis.        Dr.   Abrahams,    B-reader3    and   board-certified

internal   medicine    physician   with    a   subspecialty    in   pulmonary

diseases, examined Jones on June 4, 1998.         In a report generated in

1999, Dr. Abrahams noted, inter alia, that Jones had a chronic,

productive cough; no history of pneumonia or tuberculosis; a

moderate obstructive ventilatory impairment; negative chest x-ray

and CT scan; mild hypoxia; chronic wheezing; dyspnea on exertion;

and asymptomatic gastroesophageal reflux disease.              J.A. 226-27.

Although Dr. Abrahams observed that on June 4, 1998, Jones had a

moderate obstructive ventilatory impairment with very significant

bronchoreversibility,4 studies performed in 1995 and 1999 showed a


v. Clinchfield Coal Co., 21 Black Lung Rep. 1-134 (Ben. Rev. Bd.
1999); Robinson v. Dir., OWCP, 3 Black Lung Rep. 1-798.7 (Ben. Rev.
Bd. 1982); Tokarcik v. Consolidation Coal Co., 6 Black Lung Rep. 1-
666 (Ben. Rev. Bd. 1983).
     3
      B-readers are physicians who have passed an exam indicating
that they are proficient in interpreting x-rays for the presence of
pneumoconiosis and other diseases. 20 C.F.R. § 718.202(a)(1)(E)
(2005).
     4
      Bronchoreversibility refers to the reduction in airway
obstruction that results when bronchodilator medications are
administered to a person with a reversible airway obstruction. See

                                      5
moderate        obstructive    airway           impairment           without        marked

reversibility.       J.A. 227.       During his deposition, Dr. Abrahams

explained why Jones responded to bronchodilator medications in

1998, but not in 1999.         Dr. Abrahams opined that there was no

improvement in 1999 because Jones had achieved his maximal level of

dilation before the test was administered in 1999, most likely

through the use of prescribed bronchodilator medications.                               J.A.

259-60.     Importantly,      even    after          the       administration      of      the

bronchodilator medications, Jones still exhibited a significant

amount of obstruction, which rendered him disabled under the

relevant    regulations.       Thus,       Dr.       Abrahams’s          review    of      the

ventilatory studies led him to conclude that Jones suffers from a

totally disabling respiratory condition.

     With regard to causation, Dr. Abrahams expressed a view that

“[b]oth coal dust and cigarette smoke can cause bronchitis and

obstructive      airway   disease    and       on    an    individual      basis      it    is

impossible to determine the degree to which each factor contributed

to the impairment.”        J.A. 229.           Accordingly, he concluded that

Jones has moderate obstructive airway disease due to the combined

effects    of    industrial   bronchitis            (as    a    result    of   coal     dust

exposure) and cigarette smoke.                 J.A. 229.          In his report, Dr.

Abrahams cited various studies for the principles that (1) chronic


J.A. 103. According to Drs. Castle and Fino, pneumoconiosis does
not respond to bronchodilator medications because coal dust does
not cause a reversible obstruction. See, e.g., J.A. 103.

                                           6
coal dust exposure can cause chronic bronchitis and chronic airflow

obstruction, (2) one can have a negative x-ray and still suffer

from the deleterious effects of coal dust exposure, and (3) smoking

and coal dust have additive effects on airway obstruction.                      J.A.

228.

                                       C.

       Dante offered the opinions of Drs. Castle and Fino to rebut

the presumption of total disability due to pneumoconiosis.                      They

both   contended    that   Jones     does    not   have      pneumoconiosis      and

attributed Jones’s respiratory difficulties to                factors other than

coal dust inhalation.      We turn first to Dr. Castle’s evaluation.

       Dr. Castle, a B-reader and board-certified internal medicine

physician with a subspecialty in pulmonary diseases, evaluated

Jones on May 4, 1999.      Although Dr. Castle acknowledged that Jones

had    sufficient   exposure    to    coal    dust    as     to    have    developed

pneumoconiosis,     he   did   not   find    any     signs    of    coal    workers’

pneumoconiosis on physical examination, radiographic evaluation,

physiologic testing, or examination of arterial blood gas levels.

J.A. 56, 104.

       Instead, Dr. Castle diagnosed Jones as suffering from a

moderate airway obstruction due to tobacco smoke and chronic

obstructive pulmonary disease.              J.A. 56.       He arrived at this

conclusion for several reasons.            Dr. Castle noted the absence of

several symptoms associated with medical pneumoconiosis.                         For


                                       7
example, he observed that the vast majority of radiologists and B-

readers   did    not     see    radiographic       evidence   of    coal   workers’

pneumoconiosis.          J.A.   63.    He    did    not   find     evidence   of   an

interstitial pulmonary process on physical exam as there were no

rales, crackles, or crepitations on a regular basis.                  J.A. 63.     He

found that Jones’s physiologic studies suggested moderate airway

obstruction without any diffusion abnormality. J.A. 63. According

to Dr. Castle, “where one has significant interstitial fibrosis

[i.e., scarring] or fibrosis of a severe degree or significant

degree,   then     one   would    expect    the     diffusing      capacity   to   be

abnormal.”      J.A. 117-18.

       Several other characteristics of Jones’s impairment led Dr.

Castle to conclude that Jones is not afflicted with pneumoconiosis.

Dr. Castle found that Jones did not have a restrictive impairment

(i.e., Jones had normal lung volumes).                J.A. 63.      To Dr. Castle,

this finding was not suggestive of pneumoconiosis because “[w]hen

coal    workers’       pneumoconiosis       causes     clinically      significant

impairment, it does so generally by causing a mixed, irreversible

obstructive and restrictive ventilatory impairment.”                       J.A. 63

(emphasis added).         Dr. Castle further stated that the fact that

Jones’s      respiratory        condition      improved       in     response      to

bronchodilator medications signaled that his condition is not coal

dust-induced, because chronic dust-induced lung diseases are not

typically associated with a reversible airway obstruction.                      J.A.


                                        8
103.       He dismissed Dr. Abrahams’s conclusion that the obstruction

is a manifestation of industrial bronchitis, because Dr. Castle

said industrial bronchitis is a condition that only occurs while

one is actively exposed to coal dust and that it disappears six

months after the coal mine employment has ended.             J.A. 64.    He also

maintained that Jones did not disclose to him a history of a

productive cough5 and thus that Jones did not meet the criteria for

chronic bronchitis.        J.A. 101.

       Dr. Fino, a B-reader and board-certified internal medicine

physician with a subspecialty in pulmonary diseases, reviewed the

reports and testing of other physicians in rendering his opinion,

but did not conduct any independent examinations or testing.

Although he found that Jones had worked in the coal mines long

enough to develop coal worker’s pneumoconiosis, J.A. 179, he

nonetheless       concluded     that   Jones   does   not    suffer     from   an

occupationally acquired pulmonary condition.            J.A. 82.      While Dr.

Fino also found that Jones suffers from a disabling respiratory

condition      and   has   an   obstructive    ventilatory   abnormality,      he

concluded that it is not due to coal dust inhalation, but rather to

smoking.      J.A. 83.




       5
      In fact, Dr. Castle’s report states that Jones’s cough was
“generally” nonproductive. J.A. 53 (emphasis added). Yet, in his
deposition, Dr. Castle testified that Jones had a dry cough. J.A.
100.

                                        9
       Dr. Fino arrived at his conclusion for several reasons.             Like

Dr. Castle, he ruled out pneumoconiosis based on an absence of

symptoms typically associated with medical pneumoconiosis.                First,

he found that the x-ray evidence did not support a finding of

pneumoconiosis.        J.A. 82.     Second, he noted that much of the

medical data was not indicative of fibrosis of the lung tissue.

For example, the pulmonary function studies showed an obstructive

ventilatory abnormality, but there was no evidence of interstitial

abnormality.        J.A. 82.     He noted that Jones’s lungs had normal

diffusing capacities, and thus, there could not be a significant

pulmonary fibrosis preventing the passage of air from the lungs to

the blood.     J.A. 82, 173.         Likewise, he found that Jones had

elevated lung volumes, not consistent with fibrosis, which results

in lower lung volumes.           J.A. 83.     He also concluded that the

variability    of     Jones’s     condition   was      not   consistent     with

pneumoconiosis, because coal dust causes permanent fibrosis.               J.A.

170.

       Dr.   Fino     provided    some    additional     justifications     for

concluding that Jones is not suffering from pneumoconiosis.                  He

observed that the flow of air through Jones’s small airways was

more reduced than the flow of air through Jones’s large airways.

J.A. 82.     According to Dr. Fino, this finding, coupled with his

belief that coal dust cannot reach the lungs’ small airways,

suggested a smoke-induced condition. J.A. 186. Dr. Fino dismissed


                                         10
the possibility that Jones suffers from an obstructive lung disease

in miners called “industrial bronchitis” because he claimed that

such a condition clears up within six to twelve months of leaving

the mines.    J.A. 176.

     Upon the OWCP’s denial of Jones’s petition for modification on

February 18, 1998, the case was once again referred to the Office

of Administrative Law Judges.         J.A. 286.      At this time, the case

was assigned to Judge Daniel Leland, the third ALJ to consider

Jones’s case.       After reviewing x-ray results, pulmonary function

studies,    blood    gas   tests,   and    the   three   physicians’    medical

reports, Judge Leland found a change of circumstances.                 Based on

the evidence before him, Judge Leland concluded that Jones was

entitled to a presumption of disability based on four qualifying

ventilatory studies and Drs. Abrahams and Fino’s conclusion that

Jones suffers from a totally disabling respiratory impairment.6

J.A. 292.     Finding that Dante failed to rebut the presumption,




     6
      Unlike Drs. Fino and Abrahams, Dr. Castle did not consider
Jones to be disabled based on his lung function.         J.A. 124.
Instead, he concluded that Jones was disabled as a result of his
cardiac disease and age. J.A. 124. Importantly, as noted by Judge
Leland in his initial opinion, Dr. Castle’s assessment that Jones’s
pulmonary function placed him above federal disability levels, J.A.
64, was based on the final regulations, which are not applicable to
Jones, rather than the interim regulations.         J.A. 292.    At
deposition, Dr. Castle admitted that he was not familiar with the
Department of Labor’s 1979 standards. J.A. 131-32. Thus, Judge
Leland properly discredited Dr. Castle’s determination of
nondisability, because Dr. Castle evaluated Jones according to the
wrong disability standards. J.A. 292.

                                      11
Judge Leland awarded black lung benefits on February 9, 2000, a

finding the Board affirmed on April 20, 2001.          J.A. 294, 302.

       Thereafter, Dante appealed the Board’s order to this Court.

J.A. 304.   At that time, we held that Judge Leland erred in relying

on a conclusion that pneumoconiosis is always a progressive and

irreversible disease to discredit Dante’s experts.            See Dante Coal

Co. v. Jones, 37 Fed. Appx. 637, 639 (4th Cir. June 11, 2002)

(unpublished).    We stated that the conclusion that all forms of

pneumoconiosis are progressive and irreversible, even if correct,

would not serve to discredit Drs. Castle and Fino’s other bases for

concluding that Jones does not have pneumoconiosis, nor would such

a conclusion advance Jones’s position because Dr. Abrahams had

testified that pneumoconiosis can be reversible.          Id.    We vacated

the Board’s decision and remanded to the Board “for further remand

to the ALJ so that he may properly weigh the relevant evidence.”

Id. at 639-40.

       In his December 20, 2002 opinion on remand, Judge Leland again

awarded benefits, based on a finding that Dante’s evidence did not

rebut Jones’s presumption of disability.          J.A. 312.    Judge Leland

started from the premise that Jones is totally disabled due to

pneumoconiosis,    because   Dante    did   not   challenge     his   earlier

determination that Jones is entitled to the presumption based on

qualifying ventilatory studies and reasoned medical opinions. J.A.

309.    He also adopted his earlier conclusion that Dante could not


                                     12
rebut the presumption by showing that Jones is doing coal mine or

comparable work (see 20 C.F.R. § 727(b)(1)) or that he is capable

of doing such work (see 20 C.F.R. § 727(b)(2)), because Dante had

not appealed that determination.     Indeed, each of the doctors

agreed that Jones is disabled, thus incapable of doing coal mine or

comparable work, whether because of his age, cardiac condition, or

pulmonary problems.   J.A. 83, 124, 248-49.      Accordingly, Judge

Leland devoted his opinion to examining whether Dante had rebutted

the presumption by showing that there was no causal relationship

between Jones’s total disability and coal mine employment (see 20

C.F.R. § 727(b)(3)) or by showing that Jones does not have medical

or legal pneumoconiosis (see 20 C.F.R. § 727(b)(4)).   J.A. 309.   He

concluded that Dante had not carried its burden to rebut the

presumption because Drs. Castle and Fino’s opinions were based on

questionable reasoning.

     The Board affirmed the award of benefits on January 30, 2004,

with one judge dissenting.   J.A. 314-22.   Dante again petitioned

this Court for review of the Board’s decision.



                               II.

     This Court must assess whether the Board properly concluded

that the ALJ’s decision was supported by substantial evidence.

Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998).

In so doing, we perform an independent review of the record to


                                13
determine whether the ALJ’s findings of fact are supported by

substantial evidence.           Consolidation Coal Co. v. Held, 314 F.3d

184, 186 (4th Cir. 2002) (citing Island Creek Coal Co. v. Compton,

211 F.3d 203, 207 (4th Cir. 2000)).                 Although we must make an

independent examination of the evidence, we may not “set aside an

inference merely because [we] find[] the opposite conclusion more

reasonable or because [we] question[] the factual basis.”                   Doss v.

Dir., OWCP, 53 F.3d 654, 659 (4th Cir. 1995) (quoting Smith v.

Dir., OWCP, 843 F.2d 1053, 1057 (7th Cir. 1988)).

       Substantial evidence is evidence which “a reasonable mind

might accept as adequate to support a conclusion.”                          NLRB v.

Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1269 (4th Cir. 1994)

(internal quotation marks omitted).              It “consists of more than a

mere   scintilla     of   evidence    but     may   be   somewhat    less   than    a

preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)

(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).

       As an initial matter, we must ensure that the ALJ has complied

with the Administrative Procedures Act (“APA”) by analyzing “all of

the relevant evidence” and providing “a sufficient explanation for

[his] ‘rationale in crediting certain evidence.’” Bill Branch Coal

Corp. v. Sparks, 213 F.3d 186, 190 (4th Cir. 2000) (quoting Milburn

Colliery Co., 138 F.3d at 528).             An ALJ discharges this duty only

when   he   analyzes      all   the   relevant      evidence   and   provides      an

explanation    for    his   decision     to    credit    particular    pieces      of


                                        14
evidence over others.    Arnold v. Sec. of HEW, 567 F.2d 258, 259

(4th Cir. 1977) (“Unless the [ALJ] has analyzed all evidence and

has sufficiently explained the weight he has given to obviously

probative exhibits, to say that his decision is supported by

substantial evidence approaches an abdication of the court’s duty

to scrutinize the record as a whole to determine whether the

conclusions reached are rational.” (quotation marks and citations

omitted)).   The ALJ’s duty is to provide an explanation sufficient

for him to reach the correct result and so that this Court can

discharge its duty.   Lane Hollow Coal Co. v. Dir., OWCP, 137 F.3d

799, 803 (4th Cir. 1994).   “If this Court understands what the ALJ

did and why he did it, we, and the APA, are satisfied.”     Id.

      The claims of persons like Jones who filed requests for black

lung benefits before April 1, 1980, are reviewed under the interim

regulations at 20 C.F.R. Part 727.    Mullins Coal Co. v. Dir., OWCP,

484 U.S. 135, 137-38 (1987). Under those regulations, a miner with

ten years of experience in the mining industry is presumed to be

totally disabled due to pneumoconiosis if any of the following

conditions is met:

(1)   a chest x-ray, biopsy, or autopsy establishes the existence of
      pneumoconiosis;

(2)   ventilatory studies establish the presence of a chronic
      respiratory or pulmonary disease of a certain severity and
      duration;

(3)   blood gas studies demonstrate impairment in the transfer of
      oxygen from the lungs to the blood;


                                 15
(4)    other medical evidence, including a reasoned medical opinion,
       demonstrates the presence of a totally disabling respiratory
       or pulmonary impairment.

20 C.F.R. § 727.203(a).        Once the claimant establishes entitlement

to    the   presumption   of   disability     due   to   pneumoconiosis,    the

employer carries the burden of rebutting that presumption.                 Id.

The presumption shall be rebutted if:

(1)    the individual is doing his usual coal mine work or comparable
       work;

(2)    the claimant is able to do his usual coal mine work or
       comparable work;

(3)    the disability did not arise, in whole or in part, out of coal
       mine employment; or

(4)    the claimant does not have pneumoconiosis.

20 C.F.R. § 727.203(b).

       Dante concedes that Jones is entitled to the presumption of

disability due to pneumoconiosis under 20 C.F.R. § 727.203(a)(2)

and (a)(4) because of his qualifying ventilatory studies and

reasoned     medical   opinions.      Dante    further    acknowledges     that

rebuttal is not possible under 20 C.F.R. § 727.203(b)(1) or (b)(2)

as Jones is not presently performing, or able to perform, coal mine

or similar work.       Dante, however, maintains that the ALJ erred in

finding that it did not rebut Jones’s presumption of disability

under 20 C.F.R. § 727.203(b)(3) or (b)(4).

       Rebuttal under 20 C.F.R. § 727.203(b)(3) “is not easy.”             Lane

Hollow Coal Co., 137 F.3d at 804.             To rebut under 20 C.F.R. §

727.203(b)(3), an employer must rule out any causal relationship

                                      16
between the miner’s disability and coal mine employment.                   Id.

Where   multiple   factors   contribute    to    the   coal   miner’s    total

disability, the employer is obliged to show that “the miner’s

primary condition, whether it be emphysema or some other pulmonary

disease, was not aggravated to the point of total disability by

prolonged exposure to coal dust.” Bethlehem Mines Corp. v. Massey,

736 F.2d 120, 124 (4th Cir. 1984).

     Rebuttal at 20 C.F.R. § 727.203(b)(4) requires a showing that

the miner does not have medical or legal pneumoconiosis. Barber v.

Dir., OWCP, 43 F.3d 899, 901 (4th Cir. 1995); see also Biggs v.

Consolidation Coal Co., 8 Black Lung Rep. 1-317, 1-322 (Ben. Rev.

Bd. 1985).   For the reasons elucidated below, we conclude that the

ALJ’s determination that Dante did not rebut the presumption of

disability   due   to   pneumoconiosis    is    supported     by   substantial

evidence.



                                  III.

                                   A.

     Dante maintains that the ALJ’s decision is not supported by

substantial evidence because he dismissed in toto the opinions of

Drs. Castle and Fino based on a conclusion that they failed to

consider legal pneumoconiosis.      As a consequence, Dante contends

that the ALJ’s decision must be vacated because he failed to

consider relevant evidence and, in so doing, failed to discharge


                                   17
his duty, and to abide by the directives of our previous opinion.

Because we believe that the ALJ properly considered and discredited

Drs. Castle and Fino’s reasons for concluding that Jones does not

have pneumoconiosis, we find Dante’s assertion to be without merit.

      The ALJ correctly dismissed several of Drs. Castle and Fino’s

reasons for concluding that Jones does not have pneumoconiosis,

because they reflected a preoccupation with medical rather than

legal     pneumoconiosis.    As   stated    above,   medical    and   legal

pneumoconiosis are distinct concepts, see Hobbs, 917 F.2d at 791,

and to rebut the presumption of disability, Dante must address both

conditions. Medical pneumoconiosis can generally be detected by x-

ray and is characterized by fibrosis.       Hobbs, 917 F.2d at 791; see

also J.A. 200-01.     Thus, the ALJ properly rejected Drs. Castle and

Fino’s assertions that if Jones were suffering from pneumoconiosis,

he would manifest an abnormal diffusing capacity indicative of a

fibrotic process, because fibrosis is not a required element of

legal pneumoconiosis.       J.A. 311.      Likewise, in addressing Dr.

Fino’s impression that Jones’s elevated lung volumes were not

indicative of a fibrotic process, the ALJ correctly observed that

Dr.     Fino   was   concerned    with   medical     rather    than   legal

pneumoconiosis.7     J.A. 311; see also Cornett v. Benham Coal, Inc.,


      7
      For the same reason, the ALJ implicitly rejected Drs. Castle
and Fino’s contentions that the absence of interstitial abnormality
or x-ray evidence of pneumoconiosis suggests that Jones does not
have pneumoconiosis. These symptoms are associated with medical,
but not necessarily legal pneumoconiosis.

                                    18
227 F.3d 569, 576 (6th Cir. 2000) (reversing the Board’s decision

to affirm a denial of benefits, in part, because Dr. Fino failed to

consider legal pneumoconiosis when he concluded that the lack of

fibrosis suggested that the claimant did not have pneumoconiosis).8

     Thus, while the ALJ discredited some of Drs. Castle and Fino’s

assessments   based   on   their    heavy   preoccupation     with    symptoms

associated with medical rather than legal pneumoconiosis (such as

fibrosis), he did not discredit their opinions as a whole based on

their alleged failure to discuss legal pneumoconiosis.            Rather, as

shown below, the ALJ carefully considered and analyzed each of the

reasons Drs. Castle and Fino cited for concluding that Jones does

not have pneumoconiosis.

     The ALJ considered Dr. Castle’s conclusion that Jones does not

suffer from a coal-induced impairment because he did not have a

“mixed,   irreversible     obstructive      and   restrictive    ventilatory

impairment”   indicative    of     pneumoconiosis.      The     ALJ   properly

accorded Dr. Castle less weight because his opinion was counter to



     8
      We also note that Dr. Fino has expressed hostility toward the
Act in asserting a belief, for example, that coal mine dust
inhalation does not result in obstructive lung disease. See, e.g.,
Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 483 n.7
(7th Cir. 2001) (“Dr. Fino stated . . . that ‘there is no good
clinical evidence in the medical literature that coal dust
inhalation in and of itself causes significant obstructive lung
disease.’”). The Department of Labor has rejected Dr. Fino’s view
as “not in accord with the prevailing view of the medical community
or the substantial weight of the medical and scientific
literature.” Id. (quoting 65 Fed. Reg. 79,920, 79,939 (Dec. 20,
2000)).

                                     19
the case law, which holds that an “obstructive impairment without

a restrictive impairment may be considered legal pneumoconiosis.”9

J.A. 310 (internal citations omitted).

     The ALJ correctly concluded that Dr. Fino’s findings regarding

the relative flow of air through Jones’s small and large airways

was insufficient to rule out coal dust exposure as a contributor to

Jones’s impairment.   Dr. Fino found that the flow of air through

Jones’s small airways was more reduced than the flow of air in his

large airways.   He attributed this finding to a smoking-induced

disorder, because cigarette smoke can reach the lungs’ small

airways, whereas coal dust cannot.   However, as the ALJ noted, Dr.

Fino did not explain how coal mine dust could be eliminated as a

factor in Jones’s impairment “when the values for the airflow in

both the small and large airways varied over time.”    J.A. 310-11

(emphasis added).     Dr. Fino thus failed to address the ample

evidence of reduced airflow in Jones’s large airways.10       This

failure undermines Dr. Fino’s report, because even if the reduced

airflow in the small airways was due to smoking, Dr. Fino did not



     9
      For the same reasons, the ALJ found that Dr. Castle’s
conclusion that Jones did not have reduced lung volumes (indicative
of a restrictive impairment) did not bear on whether Jones has
legal pneumoconiosis as legal pneumoconiosis includes obstructive
disorders that do not have a restrictive component. J.A. 310.
     10
      Each of the four pulmonary function studies that Jones has
undergone since 1991 showed reduced flow of air through the Jones’s
large airways, as measured by the volume of air that Jones could
forcefully expire in one second. J.A. 292, 82.

                                20
eliminate coal dust as a contributor to the reduction in the flow

of   air   through   Jones’s   large   airways.   At   most,   Dr.   Fino’s

conclusion regarding the relative flow of air in Jones’s small and

large airways demonstrates that smoking had a deleterious effect on

Jones’s respiratory condition, a fact that is not in dispute.

      The ALJ also considered and rejected Drs. Castle and Fino’s

contention that the fact that the pulmonary function studies showed

a significant degree of reversibility in airway obstruction was

sufficient to rule out coal mine dust as a factor.       The ALJ reached

this conclusion because the most recent pulmonary function studies

showed minimal reversibility and Dante’s experts did not state how

much reversibility is necessary to eliminate coal dust as a causal

factor.     J.A. 311.    We find no error in the ALJ’s decision to

accord more weight to the more recent pulmonary function studies,

which did not show a significant degree of bronchoreversibility.

Travis v. Peabody Coal Co., 1 Black Lung Rep. 1-314, 1-320 (Ben.

Rev. Bd. 1977) (finding that if pneumoconiosis is progressive and

irreversible, the most recent medical evidence is more probative

than older information);11 Lane Hollow, 137 F.3d at 804 (applying


      11
      This Court rejected the “later [evidence] is better” standard
where earlier and later pulmonary function studies produce
irreconcilable results, i.e., where the later evidence shows signs
of improvement, which run counter to the prevailing view that
pneumoconiosis is a progressive disease. Adkins v. Dir., OWCP, 958
F.2d 49, 51-52 (4th Cir. 1992).      We reasoned that under those
limited circumstances an ALJ cannot simply assume that later
evidence is better because the evidence suggests that one of the
pieces of evidence is actually in error and the later study is just

                                       21
later is better principle where the earlier x-rays were negative

and later x-rays were positive for pneumoconiosis and were thus

consistent with the progressive nature of pneumoconiosis).        Nor do

we believe the ALJ erred in discrediting Drs. Fino and Castle’s

opinions as they did not account for the most recent pulmonary

function   studies,   which   constitute   probative   evidence   in   the

record.    Milburn Colliery Co., 138 F.3d at 534 (holding that the

ALJ erred in crediting a physician who had not considered all the

relevant evidence regarding the claimant’s condition); see also

Stark v. Dir., OWCP, 9 Black Lung Rep. 1-36, 1-37 (Ben. Rev. Bd.

1986) (“[A]n administrative law judge may legitimately assign less

weight to a medical opinion which presents an incomplete picture of

the miner’s health.”).


as susceptible to error as the earlier. Id. Here, the 1998 and
1999 data can be reconciled and thus it is proper to accord the
most recent evidence greater weight.     Dr. Abrahams provides a
logical explanation for the fact that bronchodilator treatment in
1998 resulted in improvement whereas in 1999 there was no
improvement:

     On that first [breathing] test, he improved after the
     bronchodilator medication. When he came back the second
     time,   his  baseline   test   before   giving  him   a
     bronchodilator was similar to the first test after the
     bronchodilator.   So, basically, when he came back the
     second time, when we gave him the bronchodilator, there
     was no improvement on the test, sort of suggesting that
     he’s sort of at his level of maximum improvement.

J.A. 259-60. Importantly, even though the 1998 study reflected
significant reversibility, even with the improvement, Jones still
manifested a respiratory or pulmonary disability pursuant to the
regulations. Thus the bronchodilator medications aided Jones,
but only to a limited degree.

                                   22
     We also find no error in the ALJ’s decision to reject Drs.

Castle and Fino’s conclusion that the fact that Jones did not

always have a productive cough suggested that he does not have

industrial    bronchitis.12   The     ALJ   properly   discredited   their

opinions on the grounds that Dr. Castle was the only physician not

to report a productive cough.13      J.A. 312.

     Indeed, from 1976 to 1998, at least five physicians found that

Jones experienced a productive cough and Dr. Castle’s report was

not inconsistent with the earlier findings.        See J.A. 69, 70, 72,

73, 77.     Only Dr. Castle’s deposition testimony and Dr. Fino’s

consultative report contradict the consistent reports of productive

cough.     In his deposition, Dr. Castle testified that during his

evaluation of Jones, Jones complained of a cough that was “dry, not

productive of mucus.”    J.A. 100.    Likewise, in his report, Dr. Fino

stated that Jones had complained to Dr. Castle of a “dry cough.”

J.A. 79.    In fact, however, Dr. Castle’s report, a summary of his



     12
      Under the prevailing view, industrial bronchitis “is
characterized by cough and mucous production.” See, e.g., J.A. 82
(“Minimal obstructive lung disease has been described in working
coal miners and has been called industrial bronchitis.       This
condition is characterized by cough and mucous production . . .
.”).
     13
      Dante makes much of the fact that in 1995, a technician
commented that Jones had “[shortness of breath], but no cough.”
J.A. 234.    According to Dante, this proves that Jones had a
variable history of cough.      However, given that all of the
physicians who have evaluated Jones, including Dr. Castle, noted a
history of cough, we think it appropriate for the ALJ to have
discredited the technician’s uncorroborated remark.

                                     23
findings on the date of evaluation, states that Jones had “a cough

some of the time but generally this is a dry cough, not productive

of any mucus.”         J.A. 53 (emphasis added).           Accordingly, we find

that     the   ALJ’s    refusal      to   ignore   the   consistent   reports    of

productive cough was rational, particularly when Dr. Castle’s

written report does not state that Jones did not have a productive

cough.14        Because Drs. Castle and Fino seemingly ignored the

multiple reports of productive cough in finding that Jones does not

exhibit symptoms of industrial bronchitis, we conclude that the ALJ

properly       found   that   Drs.    Castle    and   Fino’s   opinions   are   not

entitled to considerable weight. Milburn Colliery Co., 138 F.3d at

534.15


       14
      Likewise, the ALJ could have discredited Drs. Castle and
Fino’s conclusion that Jones does not have industrial bronchitis on
additional grounds. For instance, the ALJ could have found that
both Drs. Castle and Fino failed to rebut the presumption because
they did not suggest that industrial bronchitis is capable of cure.
See J.A. 198, 222. Rather, they simply expressed a belief that the
“symptoms” of industrial bronchitis abate after one leaves the
mines. See J.A. 198, 217-18. Accordingly, their conclusions were
not in conflict with those of Dr. Abrahams, who explained that

       the symptoms of the mucus production and the cough can
       improve in some people who are removed from the source of
       the bronchitis. And even the pulmonary function test can
       improve to a small degree; but, certainly, plenty of
       people are left with permanent obstructive airway
       disease, you know, from chronic bronchitis.

J.A. 250-51.
       15
      Although an ALJ cannot just perform a numerical count of the
opinions and assume that the correct position is that which is
shared by the greatest number of physicians, see Sterling Smokeless
Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997), this was not

                                           24
     In sum, we find that the ALJ considered and provided a

thorough treatment of each of the evidentiary bases for Drs. Castle

and Fino’s determination that Jones is not suffering from a coal-

induced or coal-aggravated respiratory or pulmonary impairment.

Since we understand the ALJ’s basis for finding that Dante had not

met its onerous burden to establish rebuttal under 20 C.F.R. §

727.203(b)(3) or (b)(4), “we, and the APA, are satisfied.”    Lane

Hollow Coal Co., 137 F.3d 799 at 803.16

                                B.

     Dante, like the dissenting judge on the Board, contends that

the ALJ erred in not evaluating Dr. Abrahams’s evidence on remand.

Again, we must disagree.   The ALJ was not required to address Dr.


what the ALJ did here.   Rather, the ALJ permissibly failed to
credit the physicians who did not account for the frequent,
credible reports of productive cough consistent with industrial
bronchitis.
     16
      Dante argues that the ALJ erred in failing to address his
previous reason for discrediting Drs. Castle and Fino’s conclusion
that Jones is not suffering from industrial bronchitis, namely that
pneumoconiosis is an irreversible and progressive disease.       We
disagree. Dante strains our previous decision in asserting that we
instructed the ALJ to examine again whether pneumoconiosis is
necessarily a progressive and irreversible impairment.      In that
opinion, we merely indicated that even if pneumoconiosis is
progressive and irreversible, that conclusion would not be enough
to dispose of the question of whether Dante had rebutted the
presumption of total disability due to pneumoconiosis.        In so
doing, we effectively instructed the ALJ to review all of the
evidence Dante presented in rebuttal and not merely to dismiss the
rest of the evidence without considering it.       In performing a
thorough analysis of the various reasons Dante propounded in an
effort to show that Jones is not suffering from a coal-induced
respiratory disorder, the ALJ has complied with our instructions
and with the mandate of the APA.

                                25
Abrahams’s evidence of total disability anew because his inquiry

was properly confined to the narrow question of whether Dante had

rebutted the presumption.           Since Dante conceded that Jones has met

the presumption, the ALJ did not need to discuss Dr. Abrahams’s

evaluation    as    it    was    not      relevant     to   the   rebuttal      of    the

presumption.    See Mullins Coal Co., 484 U.S. at 150 (“[N]othing in

the   regulation    requires        all    relevant     medical      evidence    to    be

considered at the rebuttal phase; such evidence must simply be

admissible at some point during the proof process.”).                       Since the

ALJ gave a thorough treatment of Dr. Abrahams’s evidence in his

initial opinion invoking the presumption, he did not need to

revisit that evidence on remand.

      Moreover, the ALJ was not obligated to discuss Dr. Abrahams’s

findings    because      it   was   the    employer     who    had    the   burden     of

rebutting     the     presumption           of    total       disability       due    to

pneumoconiosis.       If an employer does not meet its burden, the

employee necessarily prevails without producing any evidence beyond

that which gave rise to the presumption.                    Barber, 43 F.3d at 901

(employer loses where it fails to rebut the employee’s presumption

of total disability).           To find otherwise, would be to impose an

additional   burden      of     production       on   the   employee    that    is    not

manifest in the Act.          This, the law does not require.           Accordingly,

we find Dante’s contention to be without merit.




                                            26
                                    C.

     We now turn to Dante’s final claim that the ALJ erred in

failing to reopen the evidence after making reference to the newly

codified definition of legal pneumoconiosis.             Although the ALJ’s

reference to the new definition of legal pneumoconiosis was perhaps

unnecessary or even ill-advised, it does not constitute an error

requiring reversal.

     The ALJ referenced the definition of legal pneumoconiosis now

present   in   the   federal   regulations   for   the    premise   that   an

obstructive impairment alone may constitute legal pneumoconiosis.

He did so as follows:

     Dr. Castle dismisses the miner’s coal mine dust exposure
     as a cause of his obstructive airways disease because
     there was not a “mixed, irreversible obstructive and
     restrictive ventilatory impairment.” However, this is
     contrary to the case law, which holds that an obstructive
     impairment without a restrictive impairment may be
     considered legal pneumoconiosis. In addition, the new
     regulations codify the case law in defining legal
     pneumoconiosis as including “any chronic restrictive or
     pulmonary disease arising out of coal mine employment.”
     [20 C.F.R.] § 718.201(a)(2)[(2002)](emphasis added).

J.A. 310 (internal citations omitted).17       Dante maintains that the

ALJ committed a due process violation when he failed to reopen the

evidence to allow Dante to address the new definition of legal



     17
       Under the revised definition, “‘[l]egal pneumoconiosis’
includes any chronic lung disease or impairment and its sequelae
arising out of coal mine employment. This definition includes, but
is not limited to, any chronic restrictive or obstructive pulmonary
disease arising out of coal mine employment.”         20 C.F.R. §
718.201(a)(2).

                                    27
pneumoconiosis.    Although there are instances in which reopening

the record is required to safeguard due process rights,18 this is

not one of those instances.

     The   ALJ’s   reference   to   the   revised   definition   of   legal

pneumoconiosis did not prejudice Dante, because the definition was

only cited for a principle that existed in the case law, namely

that pure obstructive diseases can constitute legal pneumoconiosis.

See, e.g., Richardson v. Dir., OWCP, 94 F.3d 164, 167 n.2 (4th Cir.

1996) (“[chronic obstructive pulmonary disease], if it arises out

of coal-mine employment, clearly is encompassed within the legal

definition of pneumoconiosis.” (citing Warth v. Southern Ohio Coal

Co., 60 F.3d 173, 175 (4th Cir. 1995)); see also Heavilin v.

Consolidated Coal Co., 6 Black Lung Rep. 1-1209, 1-1212 (Ben. Rev.

Bd. 1984) (“Dr. Modi identified claimant’s emphysema as moderate

obstructive pulmonary disease and indicated that this condition is

related to dust exposure in claimant’s coal mine employment.            We

thus hold that Dr. Modi’s diagnosis of emphysema in this case meets

the statutory and regulatory definition of pneumoconiosis”).            As

this principle was manifest in the case law in 1998, at the time

Drs. Castle and Fino evaluated Jones’s condition, and in 2001 when



     18
      See, e.g., Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042 (6th
Cir. 1990) (employer’s due process rights violated where the ALJ
relied on a decision rendered after the presentation of evidence
was closed, which created a substantial and unanticipated change in
the law without giving the employer an opportunity to respond to
the change in law).

                                    28
Judge       Leland       issued    his    first          opinion,     Dante       has    had   ample

opportunity to address the question of whether an obstructive

disorder without a restrictive component can be pneumoconiosis.

See Faries v. Dir., OWCP, 909 F.2d 170 (6th Cir. 1990) (Since the

new     standard         “was     the     applicable          standard          in    effect       when

petitioner’s claim was first considered by the ALJ, petitioner’s

assertion that the [Board] took his benefits away solely on a new

interpretation of a regulation without giving him an opportunity to

be heard is baseless.”).

            Moreover,       Dante       does    not      actually         argue      that    the   new

definition of legal pneumoconiosis established for the first time

that        a     pure      obstructive          disorder           may     constitute         legal

pneumoconiosis.            Instead, at oral argument, Dante argued that the

new definition announced that legal pneumoconiosis encompasses pure

restrictive          impairments.              Even      if   Dante        is   correct      that     a

restrictive impairment alone was not previously subsumed within the

definition of legal pneumoconiosis, this conclusion has no bearing

here.           No one suggests that Jones suffered from a restrictive

impairment.          Rather, the physicians concluded that his impairment

was    an       obstructive       one.     The        ALJ     did    not    refer       to   the   new

definition of legal pneumoconiosis in an effort to draw upon the

conclusion           that        pure     restrictive               impairments          constitute

pneumoconiosis,            but    rather       to     support       the    uncontroverted           and

settled conclusion that a pure obstructive disorder may be legal


                                                    29
pneumoconiosis.     Accordingly, the ALJ’s limited reference to the

new definition of legal pneumoconiosis did not prejudice Dante and

does not require remand.



                                   IV.

     For the reasons outlined above, we affirm the award of black

lung benefits to Jones, because Dante has not carried its burden of

rebutting the presumption of disability due to pneumoconiosis

accorded   Jones.      We   thus   decline   Dante’s   invitation   to

unnecessarily prolong this already protracted litigation.



                                                             AFFIRMED




                                   30
WILKINS, Chief Judge, dissenting:

     The majority denies Dante Coal Company’s petition for review

of the Board order affirming the ALJ’s decision awarding black lung

benefits.   Because      I   would   vacate   the    order   and   remand    for

additional proceedings, I respectfully dissent.



                                      I.

     In my view, substantial evidence did not support the ALJ’s

decision to discredit Dr. Castle’s and Dr. Fino’s opinions on the

basis that they were not well reasoned.             Indeed, it is the ALJ’s

analysis, not that of Drs. Castle and Fino, that I find to be

poorly reasoned.      I will briefly describe the opinions offered by

these doctors and then address the ALJ’s reasons for discrediting

them.

                                      A.

     Important   to    my    disagreement     with    the    majority   is   my

understanding of not only the doctors’ individual reasons for

concluding that Jones’ disability was not coal-dust related but

also how those reasons fit together in a global sense.                  It was

undisputed that Jones’ extensive exposure to coal dust would have

been sufficient to cause a miner to develop pneumoconiosis, but it

was also clear that other factors, such as Jones’ many years of

cigarette smoking, could cause an impairment of the type Jones had.

The critical questions before the doctors were whether there


                                      31
actually was any causal relationship between Jones’ disability and

his coal mine employment and whether Jones suffered from medical or

legal   pneumoconiosis.    Both    Dr.   Castle    and    Dr.   Fino,   after

considering Jones’ entire medical history, including a wide range

of factors, answered these questions in the negative.            The factors

cited by the doctors as supporting this conclusion served different

purposes: Some supported the proposition that cigarette smoking

caused Jones’ impairment, some tended to show that he did not have

medical pneumoconiosis, and some indicated that he did not suffer

from any other form of legal pneumoconiosis.

     Dr.   Castle   specifically     relied   on    several     factors    in

concluding that any pulmonary impairment that Jones had was “not

related to coal mining employment, but is the type of impairment

seen with tobacco smoke induced lung disease.”           J.A. 64.   He noted

that Jones did not have evidence of interstitial fibrosis and that

the x-ray evidence was not indicative of pneumoconiosis.             He also

observed that the physiologic studies performed on Jones showed

evidence of “moderate airway obstruction without any restriction or

diffusion abnormality,” a type of impairment “typically seen in

those individuals who have a long history of tobacco abuse,” but

not typically seen “[w]hen coal workers’ pneumoconiosis causes

clinically significant impairment.”        Id. at 63.

     Also informing Castle’s determination was the fact that Jones’

respiratory   condition   improved      significantly     in    response   to


                                   32
bronchodilator medications.     Castle stated that the type of airway

obstruction   associated   with   pneumoconiosis   generally   is   not

reversible.   Castle noted that Dr. Abrahams had opined that Jones’

airway obstruction was due to chronic bronchitis.     Castle rejected

that notion, however, on the basis that Jones had left the mining

industry many years ago and “[t]he airway obstruction [caused by

chronic bronchitis] generally abates after the exposure [to coal

dust] ceases.”    Id. at 64.   Because Jones had complained to Castle

of only a dry cough, Castle also ruled out chronic bronchitis since

Jones did not have “a chronic cough productive of mucus on a

regular basis.”    Id. at 101.    And, Castle reasoned that even if

Jones had had such a cough, it would most likely have been caused

by Jones’ gastroesophageal reflux disease rather than any coal-

related condition.

     Dr. Fino’s analysis was generally similar to Dr. Castle’s.

Fino concluded that Jones’ disability “has nothing to do with the

inhalation of coal mine dust,” but rather, “is due to smoking.”

Id. at 83.    Like Castle, Fino noted the absence of the usual

indications of medical pneumoconiosis, such as x-ray evidence or

signs of fibrosis of the lung tissue.     Fino also reasoned that the

fact that Jones’ small airway flow was proportionally more reduced

than that of his large airways was “consistent with conditions such

as cigarette smoking, pulmonary emphysema, non-occupational chronic

bronchitis, and asthma,” but “not consistent with a coal dust


                                   33
related condition.”              Id. at 82.     Fino also determined that the

reversibility        of   Jones’    lung   condition--the          improvement   after

bronchodilator        treatment--indicated        that      it    was   not   coal-dust

related.        And, like Castle, Fino specifically ruled out coal-dust

related         chronic    bronchitis       for    two      independent        reasons:

(1) because it “resolves within six months of leaving the mines,”

id., and (2) because the evidence indicated that Jones at times did

not have a mucus-producing cough.

                                           B.

       I will now address seriatim the ALJ’s reasons for concluding

that Castle’s and Fino’s opinions were poorly reasoned.                        The ALJ

first discredited Castle on the basis that he allegedly ruled out

the    possibility        that    Jones’   impairment       was    coal-dust   related

because “there was not a ‘mixed, irreversible obstructive and

restrictive ventilatory impairment.’”*                   Id. at 310 (quoting Dr.

Castle’s report at J.A. 63).                  The ALJ concluded that Castle’s

analysis was contrary to the principle established in this circuit

that       an   obstructive      impairment     that   is    not    restrictive     may

constitute pneumoconiosis.            See Warth v. S. Ohio Coal Co., 60 F.3d

173, 174-75 (4th Cir. 1995).




       *
      Obstructive lung diseases impair the ability of the lungs to
expel air, while restrictive lung diseases reduce the ability to
bring air into the lungs. See Gulf & W. Indus. v. Ling, 176 F.3d
226, 229 n.6 (4th Cir. 1999).

                                           34
      The ALJ’s conclusion that Castle’s opinion is inconsistent

with Warth is itself in conflict with Stiltner v. Island Creek Coal

Co., 86 F.3d 337 (4th Cir. 1996), a case not discussed by the

majority.     There, the black lung benefits claimant argued that the

coal company’s medical experts ran afoul of Warth by opining that

if   the    miner’s   impairment   were       coal   dust   related,    the   miner

“likely” would have had a restrictive impairment.                    Stiltner, 86

F.3d at 341 (emphasis omitted).               Based on the experts’ use of

“likely” and on the fact that they ruled out coal dust as a cause

of the miner’s impairment based on the miner’s entire medical

history, we held that their opinions were not at odds with Warth.

See id.

      Here, as in Stiltner, the statement at issue was qualified.

In the quotation cited by the ALJ, Castle stated merely that

“[w]hen coal workers’ pneumoconiosis causes clinically significant

impairment, it does so generally by causing a mixed, irreversible

obstructive and restrictive ventilatory impairment.”                      J.A. 63

(emphasis added).         Also as in Stiltner, Castle relied on the type

of Jones’ impairment only as one of many factors that, considered

together, demonstrated that Jones’ impairment was not coal-dust

related.     Thus, under Stiltner, the ALJ’s criticism is misplaced.

      The    ALJ   next    discredited    Castle     and    Fino   when   the    ALJ

concluded     that    they    directly    inferred      from   the     absence    of

significant fibrosis in Jones’ lungs that his impairment was not


                                         35
coal-dust related.          The ALJ reasoned that the doctors’ analyses

overlooked     that    it    is    possible    for   a     miner   to     have   legal

pneumoconiosis      (such     as   coal-dust      induced    chronic      bronchitis)

without having fibrosis.            Again, however, it is only the ALJ’s

misreading     of     the    doctors’       statements      that     produces       any

inconsistency.        As I discussed above, the absence of fibrosis was

only one part of the doctors’ basis for concluding that Jones’

impairment was not coal-dust related.                While it is true that the

absence of fibrosis does not by itself show that Jones’ disability

was not related to coal dust, it was properly considered by both

doctors as an important piece of their analyses.

       In approving of the ALJ’s analysis, the majority appears to

fall prey to the same error committed by the ALJ.                        The majority

correctly acknowledges that to rebut the presumption of disability,

Dante had to address both medical and legal pneumoconiosis.                         See

ante, at 18.     Yet, when Castle and Fino cite factors, such as the

absence of fibrosis, that indicate that Jones did not suffer from

medical    pneumoconiosis,         the    majority   accuses       the    doctors    of

“preoccupation with medical rather than legal pneumoconiosis.” Id.

From such a criticism, one might assume that Castle’s and Fino’s

analyses      presumed      that     if    Jones     did     not     have     medical

pneumoconiosis, he did not have legal pneumoconiosis either.                        But

that    was   clearly       not    the    case.      Both    doctors       undeniably

demonstrated an understanding of the distinction between medical


                                          36
and legal pneumoconiosis, see, e.g., J.A. 200-01 (Castle); id. at

181, 220-21 (Fino), and both offered several reasons why they

believed Jones did not suffer from non-medical pneumoconiosis.

Most     importantly,       the     doctors         primarily        ruled       out   chronic

bronchitis--the       condition          Dr.    Abrahams        concluded         that    Jones

suffered from--because chronic bronchitis abates quickly once a

miner is no longer being exposed to coal dust.                           Contrary to the

majority’s    conclusion          that    “the      ALJ   carefully         considered      and

analyzed each of the reasons Drs. Castle and Fino cited for

concluding that Jones does not have pneumoconiosis,” ante, at 19-

20, the ALJ never addressed this critical point.

       The   ALJ    also    discredited          Castle        and   Fino    because       they

concluded that Jones’ 1998 pulmonary function study showing a

marked    degree     of    reversibility            in   the    degree      of    obstruction

reinforced their opinions that coal dust was not a cause of Jones’

impairment.        The ALJ observed that two 1999 studies showed only

minimal reversibility and noted that Castle and Fino did not

explain why, in light of the minimal additional improvement, that

coal dust exposure could not be a cause of Jones’ impairment.

       The ALJ’s conclusion that the doctors did not explain the

apparent reduction in reversibility is simply incorrect.                                 In his

November 1999 deposition, Castle explained the fact that the 1999

tests did not produce the same degree of reversibility as the 1998

test by noting that Jones “was much more maximally dilated” in 1999


                                               37
and observing that once a maximum amount of bronchodilatation

occurs,      further   bronchodilatation   should     not    be   expected.

J.A. 206.       Having overlooked this explanation, the ALJ never

undertook to evaluate it.

      The ALJ also discredited the doctors for failing to “explain

how   much    reversibility   was   necessary   to   rule   out   coal   mine

employment as a causal factor.”       Id. at 311.     Yet, Dr. Castle did

just that in his November 1999 deposition:

      [T]he FVC and FEV-1 are the two parameters that we
      utilize to judge reversibility, and in this case, the
      prebronchodilator forced vital capacity was 70 percent of
      predicted or 2.58 liters. [Jones] improved by 23 percent
      after the inhalation of a bronchodilator to 3.17 liters
      or 86 percent of predicted.

           That is a very significant degree of reversibility,
      and in many circumstances, it would be utilized as a
      diagnosis of asthma or bronchial asthma. This--over a 12
      percent degree of reversibility is considered significant
      if it’s also more than 200 c.c.’s, and in fact that is
      the case, and the FEV-1 improves from 1.35 liters to 1.67
      liters, or 24 percent of predicted, so that shows that
      there is, on some occasions, at any rate, some degree of
      reversibility.

Id. at 198-99 (emphasis added).

      Without acknowledging this disconnect between the record and

the ALJ’s criticisms of Castle and Fino, the majority concludes

that the ALJ rejected Castle’s and Fino’s positions regarding

reversibility because he “accord[ed] more weight to the more recent

pulmonary function studies, which did not show a significant degree

of bronchoreversibility.”      Ante, at 21.     However, nothing in the

ALJ’s decision indicates that he undertook such a weighing.               See

                                     38
J.A. 311 (ALJ’s order concluding that the flaw in Castle’s and

Fino’s opinions relating to reversibility was that they “failed to

explain why coal mine dust exposure did not contribute to [Jones’]

obstructive airways disease when the amount of reversibility in the

1999 studies was minimal, and they did not explain how much

reversibility was necessary to rule out coal mine employment as a

causal factor”).      In fact, there was nothing to weigh because the

test   results    were    not   contradictory.   Castle      and   Fino    both

explained that the reversibility demonstrated in 1998 reinforced

their opinions that Jones was not impaired by pneumoconiosis, and

Castle explained that the change between 1998 and 1999 provided

“further” proof that Jones’ impairment was “very significantly

reversible” and thus not chronic bronchitis.           Id. at 206.

       The ALJ further concluded that Castle’s and Fino’s opinions

were “entitled to less weight because their opinions are not based

on all the evidence in the record (which they allegedly reviewed).”

Id. at 312.      In this regard, the ALJ referenced the fact that six

medical reports in the record reported a history of a mucus-

producing cough.         Castle observed that when he examined Jones,

Jones complained only of a dry cough, and Fino noted that Jones’

history of mucus production was variable.            Both doctors cited the

lack   of   a   consistently    productive   cough    as   supporting     their

conclusions that Jones did not suffer from chronic bronchitis.




                                      39
     The doctors’ conclusions that Jones’ mucus production was

variable are not a substantial basis for concluding that their

opinions were not based on all of the evidence in the record.       A

1995 medical report indicated that Jones did not complain of a

cough, and Castle reported that during his examination of Jones,

Jones complained only of a dry cough.       In light of this evidence

indicating that Jones’ mucus production was inconsistent, any

conclusion that the doctors’ description of Jones’ mucus production

as variable was due to a failure to consider the complete record

could be based only on pure speculation.

     The majority makes much of the fact that Castle’s written

report states only that Jones’ cough “generally” was not productive

of mucus.     Id. at 53; see ante, at 24.   This distinction makes no

difference, however. The critical point was not that the cough was

never productive of mucus but only that it was not consistently

productive of mucus, as it would be if Jones suffered from chronic

bronchitis.     See J.A. 101 (Castle deposition); id. at 215 (Fino

deposition).

     Moreover, even assuming arguendo that Castle and Fino should

have ignored the evidence to the contrary and assumed that Jones

had a consistently mucus-producing cough, it still would not have

affected their conclusions that Jones’ impairment was not due to

coal-dust related chronic bronchitis.        Both doctors completely

ruled out chronic bronchitis caused by coal mining based on their


                                  40
belief that such a condition subsides within six months of the

termination of exposure to coal dust.          Indeed, Dr. Castle added

that a more likely cause of any mucus-producing cough would be

Jones’ gastroesophageal reflux disease.

     The ALJ further discredited Fino’s opinion because Fino stated

there was greater reduction in airflow in Jones’ small airways than

in his large airways, which is associated with a smoking-related

condition or asthma, rather than a coal-dust induced condition.

The ALJ noted that the airflow in both sizes of airways varied over

time and that Fino did not explain how coal dust could be ruled out

as a cause or aggravator of Jones’ impairment in light of that

fact.

     Even if Fino’s inference from the airflow reduction comparison

could be discounted because he did not provide a more detailed

explanation, that would not be sufficient to discredit Fino’s

entire opinion that Jones’ impairment was not coal-dust related.

Fino’s reasons for his conclusion that Jones’ impairment was not

coal-dust related were many.     And, again, his primary basis for

rejecting   the   conclusion   that    Jones    suffered   from   chronic

bronchitis--namely, that such a condition abates within six months

after the cessation of the coal dust exposure--was never even

addressed by the ALJ.




                                  41
                               II.

     In sum, the analyses offered by Drs. Castle and Fino are both

internally consistent and consistent with Fourth Circuit law.   For

the reasons discussed, there is no substantial evidence supporting

the ALJ’s decision to discredit these doctors’ opinions as poorly

reasoned.   Indeed, many of the reasons offered by the ALJ for

discrediting the doctors are simply factually incorrect.   I would

therefore grant Dante’s petition and remand to the Board to in turn

remand to an ALJ for further proceedings.    Because the majority

reaches a contrary result, I respectfully dissent.




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