      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2       Eastover Mining Co. v. Williams et al.           No. 01-4064
   ELECTRONIC CITATION: 2003 FED App. 0261P (6th Cir.)
               File Name: 03a0261p.06                                           _________________
                                                                                      COUNSEL
UNITED STATES COURT OF APPEALS
                                                         ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus,
             FOR THE SIXTH CIRCUIT                       GREENBERG & TRAURIG, Washington, D.C., for
               _________________                         Petitioner. Fred M. Busroe, Jr., CARTER & BUSROE,
                                                         Harlan, Kentucky, for Respondents.
EASTOVER MINING CO .,         X
                                                                                _________________
                  Petitioner, -
                               -
                                                                                    OPINION
                               -   No. 01-4064
          v.                                                                    _________________
                               -
                                >
                               ,                           CLAY, Circuit Judge. Petitioner Eastover Mining Co.
DOROTHY S. WILLIAMS and        -                         appeals an order issued by the Benefits Review Board of the
DIRECTOR, OFFICE OF            -                         United States Department of Labor, finding Respondent
WORKERS ’ COMPENSATION         -                         Dorothy Sue Williams, widow of Decedent Gordon Williams,
PROGRAMS, UNITED STATES        -                         entitled to an award of benefits pursuant to the Black Lung
DEPARTMENT OF LABOR,           -                         Benefits Act, 30 U.S.C. §§ 901-45. For the reasons set forth
                Respondents. -                           below, we REVERSE the Benefits Review Board.
                               -
                              N                                                         FACTS
 On Petition for Review from an Order of the Benefits      Decedent was born on January 13, 1927 and died on
  Review Board, United States Department of Labor.       July 13, 1993. According to his death certificate, Decedent
                  No. 00-0362 BLA.                       died from a pulmonary embolism due to Chronic Obstructive
                                                         Pulmonary Disease (“COPD”), itself caused by an acute
               Submitted: July 16, 2003                  gastrointestinal bleed. Decedent smoked between one pack
                                                         and one-half pack of cigarettes daily for approximately four
          Decided and Filed: July 31, 2003               decades before quitting in 1986. Decedent worked as a
                                                         surface miner for thirty-seven years, retiring in 1983 when the
Before: KEITH, SUHRHEINRICH, and CLAY, Circuit           mine where he worked ceased operations. He applied for and
                   Judges.                               ultimately received federal black lung benefits, although state
                                                         officials denied his claim for occupational disability benefits.1

                                                             1
                                                               W ith respect to his federal black lung benefits, an ALJ found the
                                                         existence of pneum oconiosis established bec ause conflicts in the record
                                                         among qualified physicians created “true do ubt” that the ALJ resolved in

                           1
No. 01-4064          Eastover Mining Co. v. Williams et al.               3    4      Eastover Mining Co. v. Williams et al.               No. 01-4064

  Decedent’s relevant medical history begins in April of                         In March of 1983, Dr. A. Dahhan examined Decedent in
1982, when Dr. Jerry Woolum diagnosed Decedent with                            connection with his living miner disability claim. Although
COPD and acute bronchitis.2             Woolum has board                       Dahhan believed Decedent suffered from a pulmonary or
certifications in general practice and surgery. Decedent saw                   respiratory impairment, Dahhan thought Decedent’s
many other physicians in connection with his claim for living                  continued smoking caused the problem because the pattern of
worker benefits and these doctors ordered numerous x-rays.                     impairment disclosed in pulmonary function studies, the
Sixteen different readers analyzed these images, and only one                  absence of x-ray evidence of pneumoconiosis, and the
of the six B-readers board-certified in radiology felt any film                presence of occasional crepitations on clinical examination
showed pneumoconiosis.3                                                        are all indicia of disability induced by smoking, not coal dust.
                                                                                  On October 20, 1984, Dr. Robert Penman examined
                                                                               Decedent.      Although Penman had neither B-reader
Decedent’s favor, b ecause pneumoco niosis is a progressive disease, and       certification nor board certification in radiology, Penman
because the ALJ concluded that a single doctor’s opinion could not             diagnosed Decedent with pneumoconiosis based on
outweigh a greater number of medical opinions supporting Decedent. The
Supreme Court and other c ourts, including this one, have subseq uently        Decedent’s x-rays. Penman concluded that Decedent’s
discredited the fact-finding methods employed in the 1983 p roceeding.         suffered pulmonary impairment partly from pneumoconiosis
See, e.g., Dir., OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81            and partly from smoking. Penman could not separate the two
(1994) (rejec ting the “true doubt” rule); Nat’l Mining Ass’n v. Dep’t of      risk factors.
Labor, 292 F.3d 849, 863-64 (D.C. Cir. 2002) (rejecting the view that
latent pneumoconiosis is generally progressive based on the Department
of Labor’s co ncessio n that latent pneumoco niosis rarely progresses);
                                                                                 Dr. William Anderson examined Decedent on
Woo dwa rd v. Dir., OWCP, 991 F.2d 314, 321 (6th Cir. 1993) (rejecting         November 28, 1984. Anderson found no evidence of
reliance on numerical superiority as a valid metho d to resolve conflicts in   pneumoconiosis in Decedent’s x-rays. Anderson instead
the record).                                                                   suspected COPD due to smoking. Anderson also diagnosed
    2
                                                                               hypertensive cardiovascular disease, mixed psychoneurosis
        Decedent first saw W oolum in 1979 .                                   and osteoarthritis.
    3
       A “B-reader” has d emo nstrated proficiency in assessing and
classifying x-rays for pneumoconiosis by successfully completing an
examination cond ucted by or o n behalf of the D epartment of He alth and
Human Services. 20 C.F.R. § 718.202(a)(1)(ii)(E). A board-certified
radio logist has received a certification in radiology from either the
American Board o f Radiology or the American Osteopathic Association.
Id. at § 718.202(a)(1)(ii)(C). Four of the six readings performed by fully-
credentialed analysts involved films taken between 1983 and 1985. T he
remaining two fully-credentialed analysts reviewed films from July of          did a non-b oard -certified B -reader. A board-certified radiologist (but not
1993, less than two weeks before Decedent died. The one fully-                 a B-reader) found no pneumoc oniosis based on film from August and
credentialed reader who found pneumoconiosis reached his conclusion            No vember o f 198 3, as did a B -reader lacking bo ard certification.
based on the analysis of an October 18 , 198 3 film, and he later partly            Although this muddle of different certifications and different films
recan ted his d iagnosis.                                                      unde rstandably tends to create confusion, one ma tter is com pletely clear:
     Other readers with less expertise analyzed the x-rays with conflicting    only one of the six fully-credentialed readers found pneumoconiosis. He
results. Four readers with no formal expertise in radiology whatsoever         did so based on a film taken in 1983 and later expressed reservations
saw pneumoc oniosis in films taken in October and November of 1984, as         about his opinion.
No. 01-4064        Eastover Mining Co. v. Williams et al.               5    6      Eastover Mining Co. v. Williams et al.       No. 01-4064

  Dr. Clarke4 examined Decedent on December 17, 1984. He                     for a cyst, hypertension, a hernia, acute influenza, peripheral
diagnosed pneumoconiosis by x-ray as well as severe                          vascular disease, acute bronchitis, pneumonia, a transient
restrictive and obstructive lung disease based on pulmonary                  ischemic attack, several episodes of respiratory distress,
function studies. Clarke declared that pneumoconiosis                        carotid artery disease, acute gastrointestinal bleeding, a
rendered Decedent totally disabled.                                          urinary tract infection, and acute septicemia. In July of 1990,
                                                                             Woolum diagnosed end-stage COPD. During Decedent’s
  Dr. Ballard Wright examined Decedent on March 30, 1985.                    final hospitalization, Woolum reported massive upper
Wright read one of Decedent’s x-rays as positive for                         gastrointestinal bleeding, erosive gastritis, and active peptic
pneumoconiosis and interpreted his pulmonary function                        ulcer disease. Decedent died despite surgical intervention
studies as showing severe restrictive and obstructive                        intended to stop the bleeding.
impairment, but concluded that smoking caused Decedent’s
poor pulmonary function.                                                       The hospital discharge papers included these final
                                                                             diagnoses: (1) pulmonary embolism; (2) post-inflammatory
  With respect to the Woolum, Decedent’s “treating                           pulmonary fibrosis; (3) emphysema; (4) acute upper GI bleed
physician,” pneumoconiosis is mentioned only briefly in the                  (ulcer); (5) acute anemia due to severe blood loss; (6) gastritis
“previous history” section of his report.5 Pneumoconiosis                    with hemorrhage; (7) cor pulmonale; and (8) peripheral
appears in Woolum’s medical record twice more—first, in                      vascular disease. During his treatment of Decedent, Woolum
December of 1986, when Decedent reported anxiety and                         never conducted regular pulmonary function studies or blood
depression related to his pursuit of black lung benefits, and                gas tests, nor did Woolum diagnose pneumoconiosis.
second, in January of 1987, when Woolum again listed
pneumoconiosis in the “previous history” portion of a medical                                 PROCEDURAL HISTORY
report. These are the only references to pneumoconiosis
Woolum recorded.                                                                Respondent filed for survivor’s benefits on August 2, 1993,
                                                                             two weeks after Decedent’s death. On January 24, 1994, after
   Over the next eleven years between Decedent’s initial visit               administrative processing by the Department of Labor
to Woolum and his eventual death, Woolum treated Decedent                    (“DOL”), a claims examiner denied Respondent’s claim
                                                                             because she failed to establish Decedent died from
                                                                             pneumoconiosis. On May 25, 1994, DOL reversed itself and
    4                                                                        found the evidence sufficient. At Petitioner’s request, the
     Like many of the physicians discussed herein, Dr. Clarke’s first
name does not app ear in the Joint Append ix.                                claim proceeded to an Administrative Law Judge (“ALJ”) for
                                                                             trial.
    5
      To assist Deced ent in ob taining living miner disa bility benefits
imme diately p rior to his retirement, Woolum wrote on June 8, 1983 that       On May 8, 1995, the ALJ issued a decision and order
Decedent suffered from chronic pep tic ulcer d isease w ith acute            denying Respondent’s claim. ALJ Charles P. Rippey
exacerbation, diverticular disease of the colon with periodic                considered a February 24, 1994 report by Woolum that
exacerb ations, hypertension contro lled with med ication, and m anic
depression, requiring chronic medication. At a deposition on August 22,      claimed:
1985, Wo olum declared that Decedent’s x-rays revealed evidence of
pneumo coniosis and that it contributed to his COP D. W oolum offered no         [Decedent’s] pulmonary disease progressed during the
basis for this conclusion during the depo sition or in any of D eced ent’s       years I cared for him and the last several years of his life
med ical records.
No. 01-4064        Eastover Mining Co. v. Williams et al.              7    8      Eastover Mining Co. v. Williams et al.     No. 01-4064

  he was in respiratory failure . . . most of the time. He                    Finally, ALJ Rippey refused “to ignore the surrounding
  was hospitalized several times requiring ventilatory                      circumstances.” (Id.) Judge Rippey “infer[red] that Dr.
  support to keep him alive. The terminal event was likely                  Woolum’s March 10, 1995 opinion was given following a
  a pulmonary embolus. Unfortunately, an autopsy was                        discussion with [Respondent’s] counsel, and that Dr. Woolum
  not granted by the family. I have no problem stating that                 wanted to say all that he could to strengthen [Respondent’s]
  this gentleman was disabled secondary to his lung                         case.” (J.A. at 73.)
  disease of which pneumoconiosis, in my mind, was
  certainly a contributing factor.                                            Petitioner filed a timely appeal to the Benefits Review
                                                                            Board (“BRB”), which vacated ALJ Rippey’s decision on
(J.A. at 72.) Before trial, however, ALJ Rippey met with both               April 24, 1996.        The BRB rejected ALJ Rippey’s
sides and informed Respondent’s counsel that this letter alone              characterization of Woolum’s second opinion as a shift or
did not constitute sufficient proof.                                        departure from his initial conclusion; rather, the BRB termed
                                                                            Woolum’s new opinion a “clarification” of his earlier
   At trial, Respondent introduced a new letter from Woolum                 conclusion. (J.A. at 67.) The Board also refused to find that
dated March 10, 1995. This time, Woolum concluded,                          the timing of Woolum’s second letter made Woolum’s
“within a reasonable degree of medical probability,” that                   statements less reliable. The BRB thus remanded the case to
pneumoconiosis “hastened [Decedent’s] death.”6 (Id.)                        a new ALJ for further consideration.
Although ALJ Rippey gave “extra weight to the opinion of
Dr. Woolum because he was the treating physician,” ALJ                        The new ALJ, Clement J. Kichuk, gave little weight to
Rippey based his decision to deny benefits on several factors.              Petitioner’s experts. Instead, holding for Respondent, ALJ
First, the March 10, 1995 opinion conflicted with his                       Kichuk argued that:
February 24, 1994 letter. Second, the March 10, 1995 letter
failed to specify “in what matter the pneumoconiosis hastened                   [i]t is apparent from the voluminous medical reports that
[Decedent’s] death.” (Id.) Judge Rippey asked, rhetorically,                    Dr. Woolum had [Decedent] under close and constant
whether “it led to his development of an embolus earlier than                   treatment over a period of fourteen years which provided
it would otherwise have developed? Did the pneumoconiosis                       him with an outstanding opportunity to determine the
cause death earlier than would otherwise have occurred once                     exact nature and cause of his patient’s pulmonary and
the embolus developed?” (Id.) Third, ALJ Rippey noted that                      respiratory impairment with reliance upon repeated tests,
the March 10, 1995 letter stated only that Woolum could                         evaluations, and observations of response to proscribed
conclude with a reasonable degree of medical “probability”                      medicines and therapy.
that the pneumoconiosis hastened the death, as opposed to the
usual language, “with a reasonable degree of medical                        (J.A. at 61.) This time, Petitioner appealed to the BRB.
certainty.” (Id.)                                                           Although the BRB initially affirmed ALJ Kichuk, the BRB
                                                                            remanded the case to ALJ Kichuk following Petitioner’s
                                                                            motion for reconsideration. Specifically, the BRB found that
                                                                            ALJ Kichuk based his decision on the “true doubt” test that
    6
      W oolum hypothesized that, although the pulmonary embolus
directly caused the miner’s death, pneumoconiosis hastened his dem ise
because the miner’s “lack of oxygen [and] his retained carbon dioxide all
played an effect on all parts of his body.” (J.A. at 277.)
No. 01-4064         Eastover Mining Co. v. Williams et al.               9    10   Eastover Mining Co. v. Williams et al.       No. 01-4064

the Supreme Court found impermissible in Director, OWCP                       chronic basis—a finding suggesting COPD due to smoking,
v. Greenwich Collieries, 512 U.S. 267, 280-81 (1994).7                        not pneumoconiosis. According to Sargent:
  On the second remand, Petitioner introduced evidence that                     In my opinion, with a reasonable degree of medical
radiologists who examined Decedent’s x-rays found no                            certainty, [Decedent] had severe chronic obstructive
evidence of pneumoconiosis. Importantly, Petitioner offered                     pulmonary disease secondary to cigarette smoking. This
the analysis of Dr. A. Dahhan, a physician board-certified in                   is the diagnosis put forth by Dr. Woolum. In fact, coal
internal medicine and pulmonary medicine who was one of                         worker’s pneumoconiosis is not mentioned in Dr.
the many doctors to physically examine Decedent in the early                    Woolum’s diagnostic impressions either at the time of
1980s. Dahhan stated that Decedent died due to an upper GI                      admission or time of discharge. Chronic obstructive
bleed, possibly caused by the steroids he took for                              pulmonary disease and pulmonary emphysema can cause
bronchospasms.8 After reviewing all x-rays and medical                          severe lung disease without characteristic chest x-ray
records, Dahhan concluded:                                                      changes of pneumoconiosis. Therefore, I believe the
                                                                                cause of this miner’s respiratory impairment was
  There is insufficient objective evidence to justify the                       pulmonary emphysema due to cigarette smoking, and not
  diagnosis of coal worker’s pneumoconiosis . . . . [H]is                       due to coal worker’s pneumoconiosis.
  death was contributed to greatly by his advanced chronic
  obstructive lung disease with no evidence that his death                    (J.A. at 284.) Sargent also stressed that even assuming
  was contributed to or hastened by his exposure to coal                      Decedent had pneumoconiosis, it did not cause his death.
  dust or coal worker’s pneumoconiosis.                                       Sargent wrote:
(J.A. at 280.) Dr. Dale Sargent, board certified in pulmonary                   Very clearly, this man died of an acute event
diseases and critical care, rendered an opinion similar to                      (gastrointestinal bleeding) during the time he was
Dahhan’s. Sargent noted that Decedent’s blood gases showed                      hospitalized in July 1993. There is no post mortem
severe hypoxemic hypercapnic respiratory failure on a                           examination, so the cause of the death is conjectural.
                                                                                Nevertheless, this man had been bleeding recurrently
                                                                                during his hospitalization and it is certainly possible that
                                                                                he died from acute gastrointestinal bleeding. Dr.
    7                                                                           Woolum thought that another possibility for cause of
      As noted, under the now-discredited “true doubt” test, a claimant
could establish the existence of pneumoco niosis if conflicts in the record     death was pulmonary embolism. None of the physicians
among qualified physicians created “true doubt” about the presence of the       caring for the patient at this point indicated that
disease.                                                                        [Decedent] died due to either his lung disease or to coal
    8                                                                           worker’s pneumoconiosis. Therefore, the cause of death
      Dahhan p re vio usly examin ed Decedent in M arch o f 198 3, in           is either gastrointestinal bleeding or pulmonary
connection with his living miner claim. Although Dahhan believed
Decedent suffered from a pulmonary or respiratory impairment, Dahhan
                                                                                embolism, neither of which have been shown to be
thought Decedent’s continued smoking caused the problem because the             caused by pneumoconiosis or chronic obstructive
pattern of impairment disclosed in pulmonary function studies, the              pulmonary disease.
absence of x-ray evidence of pneumoconiosis, and the presence of
occasional crepitations on clinical exam ination a ll indicated disability
induced by smoking, no t coal d ust.
No. 01-4064      Eastover Mining Co. v. Williams et al.        11   12       Eastover Mining Co. v. Williams et al.            No. 01-4064

(J.A. at 285.) In his decision, ALJ Kichuk disregarded the          (J.A. at 35.) ALJ Kichuk added that he did not believe
conflicting x-ray analyses, observing that the “evidence of         Woolum’s opinion was a “gratuity extended to a patient by a
record does not indicate that [Respondent] has established the      sympathetic treating physician.” (Id.)
presence of complicated coal workers’ pneumoconiosis by
chest x-ray.” (J.A. at 31.) Judge Kichuk also noted the lack         When the BRB affirmed, Petitioner timely appealed to this
of any biopsy or autopsy evidence to support a diagnosis of         Court.
pneumoconiosis.
                                                                                                DISCUSSION
 Nevertheless, ALJ Kichuk found Respondent’s position
more compelling. ALJ Kichuk said that Woolum’s opinion:               This appeal presents issues of administrative practice and
                                                                    procedure that are mixed questions of law and fact. We
  [was the] most reasoned and persuasive . . . because it           review questions of law de novo. Peabody Coal Co. v. Greer,
  includes the most comprehensive analysis of all the               62 F.3d 801, 804 (6th Cir. 1995) (“This Court has plenary
  elements of the miner’s occupational and medical                  authority to review the Board's legal conclusions.”) (citing
  history. Moreover, Dr. Woolum personally treated the              Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1119 (6th
  miner and was his principal caregiver for fourteen (14)           Cir.1984)). To the extent we must review factual conclusions
  years, from 1979, until [Decedent] passed away in July            as well, we do so with much greater deference. 33 U.S.C.
  of 1993. His treatment of [Decedent] over the years is            § 921(b)(3). This Court will affirm an ALJ’s factual findings
  fully and painstakingly documented in the record, which           when substantial evidence supports those conclusions.
  includes, but is not limited to, thirteen (13)                    Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230-31 (6th
  hospitalizations (at least five for acute respiratory failure)    Cir. 1994). Where, however, an ALJ has improperly
  and each time conducting chest x-rays, EKGs, and                  characterized the evidence or failed to account of relevant
  arterial blood gas studies. From January of 1990, Dr.             record material, deference is inappropriate and remand is
  Woolum also diagnosed [Decedent] with cor pulmonale               required.9 Dir., OWCP v. Rowe, 710 F.3d 251, 255 (6th Cir.
  and end-stage chronic obstructive pulmonary disease.              1983). From the outset, we note that claimants have the
                                                                    burden of proof in black lung benefit proceedings. The Black
  I accord greatest weight to Dr. Woolum’s opinion, not             Lung Benefits Act, 30 U.S.C. §§ 901-62 (1994), creates an
  simply because he was the miner’s treating physician for
  many years, but because he based his medical opinion
  upon numerous objective studies obtained during the                    9
                                                                          Technica lly, this Court is reviewing the BRB ’s decision affirming
  miner’s multiple hospital admissions for acute                    the ALJ, no t the ALJ’s decision itself. Thus, we do not consider whether
  respiratory distress. In sum, Dr. Woolum specifically             the BRB’s decision was supported by substantial evidence, but whether
  identified the studies and observations upon which he             the BR B correctly conclude d that substantial evidence suppo rted the
  relied and the conclusions he reached are consistent with         ALJ ’s decisio n. See, e.g., Zimmerma n v. D ir., OW CP , 871 F.2d 564, 567
                                                                    (6th Cir. 19 89); Bizzarri v. Consolida tion Coal Co., 775 F.2d 751, 753
  and supported by the underlying objective evidence of             (6th Cir. 1985). The stand ards o f review are the same. Cross Moun tain
  record.                                                           Coal, Inc. v. Wa rd, 93 F.3d 211, 215 (6th Cir. 1996) (“The standards of
                                                                    review for the BRB and this court are the same.”) (citing Welch v. B enefits
                                                                    Review Bd., 808 F.2d 443, 445 (6th Cir.1986) (per curiam)). This Court
                                                                    reviews the legal issues de novo but affords deference to relevant factual
                                                                    findings.
No. 01-4064           Eastover Mining Co. v. Williams et al.               13   14    Eastover Mining Co. v. Williams et al.       No. 01-4064

adversarial administrative procedure designed to require                          Department of Labor (DOL) regulations help further
mining companies to pay those miners (or the survivors of                       describe “pneumoconiosis” by providing an illustrative listing
those minors) who legitimately suffer from a class of different                 of diseases that pneumoconiosis includes:
coal dust-related pulmonary injuries commonly categorized
as pneumoconiosis. Petitioner is eligible for benefits if                         For the purpose of the Act, pneumoconiosis means a
pneumoconiosis caused or “hasten[e]d the miner’s death.”10                        chronic dust disease of the lung and its sequelae,
20 C.F.R. § 718.205(c)(5).               Congress defined                         including respiratory and pulmonary impairments,
“pneumoconiosis” as a “chronic dust disease of the lung and                       arising out of coal mine employment. This definition
its sequelae, including respiratory and pulmonary                                 includes, but is not limited to, coal workers’
impairments, arising out of coal mine employment.” 30                             pneumoconiosis, anthracosilicosis, anthracosis,
U.S.C. § 902(b) (1994).                                                           anthrosilicosis, massive pulmonary fibrosis, progressive
                                                                                  massive fibrosis, silicosis, or silicotuberculosis, arising
                                                                                  out of coal mine employment.
    10                                                                          20 C.F.R. § 718.201 (1997). As this regulation makes clear,
         In its entirety, the app licable regulation read s:
                                                                                legal “pneumoconiosis” encompasses medical conditions
    (c) For the purpose of adjudicating survivors' claims filed on or           other than clinical pneumoconiosis. See, e.g., Nance v.
    after January 1, 1982 , death will be co nsidered to be due to              Benefits Review Bd., 861 F.2d 68, 71 (4th Cir. 1988). Clinical
    pneumo coniosis if any of the follow ing criteria is met:
                                                                                or medical pneumoconiosis is a lung disease caused by
           (1) W here competent medical evidence establishes that               fibrotic reaction of the lung tissue to inhaled dust that is
           pneumoconiosis was the cause of the miner's death, or                generally visible on chest x-ray films. See, e.g., Usery v.
                                                                                Turner-Elkhorn Mining Co., 428 U.S. 1, 6-7 (1976). Legal
           (2) W here p neum oco niosis was a substantially contributing        pneumoconiosis includes all lung diseases meeting the
           cause or factor leading to the miner's death or where the
           death was caused by complications of pneumoconiosis, or
                                                                                regulatory definition of any lung disease that is significantly
                                                                                related to, or aggravated by, exposure to coal dust. See, e.g.,
           (3) W here the presump tion set forth at § 7 18.3 04 is              Hobbs v. Clichfield Coal Co., 917 F.2d 790, 791 (4th Cir.
           applicable.                                                          1990).
           (4) Ho wever, survivo rs are not eligible for benefits where           Under DOL regulations, a claimant may establish legal
           the miner's death was caused by a traum atic injury or the
           principal cause of death was a medical condition not related         pneumoconiosis by any of four different methods of proof:
           to pneum oconiosis, unless the evidence establishes that             (1) x-ray evidence; (2) autopsy or biopsy evidence;
           pneumo coniosis was a substantially contributing cause of            (3) evidence of complicated medical pneumoconiosis or
           death.                                                               progressive massive fibrosis; or (4) reasoned and documented
                                                                                medical opinions. 20 C.F.R. § 718.202(a)(1)-(4). As noted,
           (5) Pneumo coniosis is a "substantially contributing cause"
           of a miner's death if it hastens the miner's death.
                                                                                the claimant bears the burden of proof. Greenwich Collieries,
                                                                                512 U.S. at 281. The presence of evidence favorable to the
20 C.F.R. § 718.205. The presump tions in § 718.30 4 apply only when a          claimant or even a tie in the proof will not suffice to meet that
claimant can offer certain medical evidence, and Respondent does not            burden. Id.
claim that any of the presump tions applies in this case. See 20 C.F.R.
§ 71 8.30 4.
No. 01-4064      Eastover Mining Co. v. Williams et al.       15    16     Eastover Mining Co. v. Williams et al.              No. 01-4064

   Despite a certain degree of lingering confusion among the        claimant’s medical condition.”11 Id. at 1967. The Court
courts of appeals, it has become overwhelmingly evident that        explained in detail:
the testimony of the “treating physician” receives no
additional weight. Sometimes termed the “treating physician           The question whether a treating physician rule would
rule,” claimants have argued that the treating physician’s            increase the accuracy of disability determinations under
analysis should receive greater significance in ALJ decisions         ERISA plans . . . seems to us one the Legislature or
(if not dispositive weight) relative to analyses performed by         superintending administrative agency is best positioned
other experts.                                                        to address. As compared to consultants retained by the
                                                                      plan, it may be true that treating physicians, as a rule,
   In addition to the black lung context, the “treating physician     have a greater opportunity to know and observe the
rule” plays a role in Social Security proceedings pursuant to         patient as an individual. Nor do we question the . . .
regulations that stipulate that the Commissioner of Social            concern that physicians repeatedly retained by benefits
Security must give special weight to the claimant’s treating          plans may have an incentive to make a finding of ‘not
physician when determining whether a claimant deserves                disabled’ in order to save their employers money and to
disability benefits. See 20 C.F.R. §§ 404.1527(d)(2),                 preserve their own consulting arrangements. But the
416.927(d)(2) (2002). Courts have also applied the “treating          assumption that the opinions of a treating physician
physician rule” in disability determinations under employee           warrant greater credit than the opinions of plan
benefit plans covered by the Employee Retirement Income               consultants may make scant sense when, for example, the
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-53. See,              relationship between the claimant and the treating
e.g., Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 533          physician has been or short duration, or when a specialist
(6th Cir. 2003), overruled by Black & Decker Disability Plan          engaged by the plan has expertise the treating physician
v. Nord, 123 S.Ct. 1965 (2003) (Ginsburg, J.) (criticizing, in        lacks. And if a consultant engaged by a plan may have
an opinion by a unanimous Court, the usefulness of granting           an “incentive” to make a finding of “not disabled,” so a
deference to the opinion of a treating physician).                    treating physician, in a close case, may favor a finding of
                                                                      “disabled.” Intelligent resolution of the question of
  In Black & Decker Disability Plan v. Nord, 123 S.Ct. at             whether routine deference to the opinion of a claimant’s
1969, the Supreme Court recently reversed a Ninth Circuit             treating physician would yield more accurate disability
decision, Nord v. Black & Decker Disability Plan, 296 F.3d
823, 831 (9th Cir. 2002), that afforded deference to treating
physicians in ERISA-related disability determinations.
                                                                         11
Although Black & Decker dealt with ERISA, the unanimous                     As noted, Social Security benefit determinations are governed by
Court disapproved of the “treating physician rule” with             regulations that require de ference to treating physicians, see 20 C.F.R.
language that criticizes the principle itself, rather than its      §§ 404 .152 7(d)(2), 4 16.9 27(d)(2 ), while neither ERISA nor Black Lung
                                                                    regulations contain a similar requirement. The Black & Decker Court
operation in an ERISA context. See Black & Decker, 123              noted that deference to treating physicians makes m ore sense in the Social
S.Ct. at 1971. As Justice Gisburg explained, ERISA                  Security context because “[p]resumptions employed by the [Social
regulations that require a “full and fair” assessment of claims     Security] Comm issioner’s regulations grow out of the need to administer
“do not command plan administrators to credit the opinions          a large b enefits system efficiently.” Id. at 1971 (quotation omitted). This
of treating physicians over other evidence relevant to the          rationa le is inapplicable to the black lung bene fits scheme, which affects
                                                                    dram atically fewer people and whose remaining claimants will decrease
                                                                    naturally as time passes.
No. 01-4064         Eastover Mining Co. v. Williams et al.               17     18   Eastover Mining Co. v. Williams et al.       No. 01-4064

  determinations, it thus appears, might be aided by                            may give weight to the treating physician’s opinion when
  empirical investigation of the kind courts are ill-equipped                   doing so makes sense in light of the evidence and the record,
  to conduct.                                                                   but may not mechanistically credit the treating physician
                                                                                solely because of his relationship with the claimant”); Griffith
Id. at 1971 (internal quotations and citations omitted). The                    v. Dir., OWCP, 49 F.3d 184, 187 (6th Cir. 1995) (citing
Court thus notes that treating physicians may have strong pro-                  Tussey for the Court’s conclusion that “under these
claimant biases and lack the expertise held by non-treating                     circumstances, the ALJ was not required to give greater
doctors. These critiques of the “treating physician rule” apply                 weight to the opinion of the treating physician”).
with equal force to the notion that treating physicians should
receive deference in black lung proceedings.                                       Other circuits have also rejected the treating physician rule
                                                                                in black lung litigation. See, e.g., Kennellis Energies, Inc. v.
   In fact, the courts of appeals, including this one, have often               Hallmark, __ F.3d __, 2003 WL 21464596, at *6 (7th Cir.
recognized that there is no “treating physician rule” in black                  2003) (“[A] preference or the treating physician’s opinion . . .
lung cases, although this Court’s jurisprudence is somewhat                     has been rejected by this Circuit.”) (citations omitted);
equivocal. In Tussey v. Island Creek Coal Co., 982 F.2d 1036                    Peabody Coal Co. v. McCandless, 255 F.3d 465, 469 (7th
(6th Cir. 1993), this Court wrote that “opinions of treating                    Cir. 2001) (calling a treating physician preference
physicians are entitled to greater weight than those of non-                    “irrational,” in part because “[t]reating physicians often
treating physicians.” Id. at 1042. Subsequently, however, we                    succumb to the temptation to accommodate their patients (and
withdrew from the language in Tussey, explaining that Tussey                    their survivors) at the expense of third parties such as
“did not suggest that treating physicians should automatically                  insurers, which implies attaching a discount rather than a
be presumed to be correct—we indicated that their opinions                      preference to their views”); Lango v. Dir., OWCP, 14 F.3d
should be ‘properly credited and weighed.’”12 Peabody Coal                      573, 576-77 (3d Cir. 1997) (finding treating physician’s
Co. v. Groves, 277 F.3d 829, 834 (6th Cir. 2002) (quoting                       conclusory statement that coal miner’s pneumoconiosis
Tussey, 982 F.2d at 1042). In another case more recent than                     hastened his death did not support black lung benefits claim).
Peabody Coal, we unambiguously stated that “the                                 As the Fourth Circuit explained:
misconceived ‘treating physician presumption’ does not
exist.” Wolf Creek Collieries v. Dir., OWCP, 298 F.3d 511,                        Neither this circuit nor the Benefits Review Board has
521 (6th Cir. 2002) (emphasis added); see also Jericol                            ever fashioned either a requirement or a presumption that
Mining, Inc. v. Napier, 301 F.3d 703, 709 (6th Cir. 2002)                         treating or examining physicians' opinions be given
(quoting Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849,                      greater weight than opinions of other expert physicians.
861 (D.C. Cir. 2002), for the proposition that ‘“[t]he                            We have often stated that as a general matter the opinions
consensus among courts has been that an agency adjudicator                        of treating and examining physicians deserve especial
                                                                                  consideration. We stated, for example, in Hubbard v.
                                                                                  Califano, 582 F.2d 319, 323 (4th Cir.1978), that "[we]
    12                                                                            place[ ] great reliance on a claimant's treating physician,"
        Judge Kennedy still dissented from Peabody Coal v. Groves,
explaining that she saw “no reason why a treating physician’s opinion that        and, citing Hubbard, in King v. Califano, 615 F.2d 1018,
one condition caused or contributed to another should be accepted in the          1020 (4th Cir.1980), that "[we] place[ ] great reliance on
face of exp ert op inions to the contrary, at least where there is no logical     the conclusions of a claimant's examining physician." In
explanation for doing so offered by the A LJ.” 2 77 F .3d at 837 (Kenned y,
J., dissen ting).
                                                                                  neither case, however, did we suggest, much less hold,
No. 01-4064     Eastover Mining Co. v. Williams et al.      19   20    Eastover Mining Co. v. Williams et al.            No. 01-4064

  that the opinions of treating or examining physicians            adjudication officer must give consideration to the
  must be accorded greater weight than opinions of other           relationship between the miner and any treating
  physicians. It is, of course, one thing to say that we give      physician whose report is admitted into the record.
  great weight to the treating or examining physician's            Specifically, the adjudication officer shall take into
  opinion; it is quite another to say that as a matter of law      consideration the following factors in weighing the
  we give greater weight to such an opinion than to                opinion of the miner's treating physician:
  opinions by other physicians. The ALJ therefore was not
  required to defer to Dr. Soliva's diagnoses or to accord            (1) Nature of relationship. The opinion of a physician
  them greater weight than the opinions of the other                  who has treated the miner for respiratory or pulmonary
  physicians.                                                         conditions is entitled to more weight than a physician
                                                                      who has treated the miner for non-respiratory
Grizzle v. Pickands Mather & Co./Chisolm Mines, 994 F.2d              conditions;
1093, 1097-98 (4th Cir. 1993); see also Island Creek Coal
Co. v. Compton, 211 F.3d 203, 212 (4th Cir. 2000) (“An ALJ            (2) Duration of relationship. The length of the
may not discredit a physician’s opinion solely because the            treatment relationship demonstrates whether the
physician did not examine the claimant.”). Thus, most courts          physician has observed the miner long enough to
do not afford additional deference to treating physicians.            obtain a superior understanding of his or her condition;

   The Department of Labor recently promulgated regulations           (3) Frequency of treatment. The frequency of
with respect to the role treating physicians should play in           physician-patient visits demonstrates whether the
black lung benefit determinations, but these rules do little          physician has observed the miner often enough to
more than explain that sometimes a treating physician may             obtain a superior understanding of his or her condition;
“have a thorough understanding of a miner’s condition,” but           and
in other cases, ALJs should not rely on the opinions of
treating physicians. See 20 C.F.R. § 718.104(d)(2002).                (4) Extent of treatment. The types of testing and
Rejecting “automatic acceptance” of the treating physician’s          examinations conducted during the treatment
opinion, the DOL intended the rule “to force a careful and            relationship demonstrate whether the physician has
thorough assessment of the treating relationship.”                    obtained superior and relevant information concerning
Regulations Implementing the Federal Coal Mine and Safety             the miner's condition.13
Act of 1969, as Amended, 65 FED . REG . 79,920, 79,932 (Dec.
20, 2000) [hereinafter Implementing Regulations]. To
effectuate this end, the DOL’s regulation states:
  (d) Treating physician. In weighing the medical
  evidence of record relevant to whether the miner suffers,
  or suffered, from pneumoconiosis, whether the
  pneumoconiosis arose out of coal mine employment, and               13
  whether the miner is, or was, totally disabled by                     The regulation did not become effective until December 20, 2000,
  pneumoconiosis or died due to pneumoconiosis, the              so the ALJ did not have its benefit when he made his decision. The BRB,
                                                                 however, issued the decision presently under review on January 31, 2001.
No. 01-4064        Eastover Mining Co. v. Williams et al.                  21   22     Eastover Mining Co. v. Williams et al.              No. 01-4064

20 C.F.R. § 718.104(d) (2001). The regulation says nothing                      “the thoroughness evident in its consideration, the validity of
about prioritizing a treating physician’s perspective;14 rather,                its reasoning, its consistency with earlier and later
the regulation expects ALJs to analyze the nature and duration                  pronouncements, and all those factors which give it power to
of the doctor-patient relationship along with the frequency                     persuade”). For instance, a highly qualified treating physician
and extent of treatment. This is similar to the kind of critical                who has lengthy experience with a miner may deserve
analysis an ALJ should apply when considering any expert                        tremendous deference, whereas a treating physician without
opinion. The DOL further expects ALJs to weigh the report                       the right pulmonary certifications should have his opinions
of a treating physician “against all other relevant evidence in                 appropriately discounted. The case law and applicable
the record.” Implementing Regulations, 65 FED . REG . at                        regulatory scheme make clear that ALJs must evaluate
79,934.                                                                         treating physicians just as they consider other experts.
  A simple principle is evident: in black lung litigation, the                     As explained, Respondent may prove her case through
opinions of treating physicians get the deference they deserve                  autopsy or biopsy evidence, x-ray evidence, evidence of
based on their power to persuade. Cf. Skidmore v. Swift &                       complicated medical pneumoconiosis or progressive massive
Co., 323 U.S. 134, 140 (1944) (affording an administrative                      fibrosis, or reasoned and documented medical opinions. 20
agency pronouncement only the weight it deserved in light of                    C.F.R. § 718.202(a)(1)-(4). Since Respondent offered no
                                                                                autopsy or biopsy evidence, we may move directly to
                                                                                Decedent’s x-rays.
    14
       Contrast the black lung regulation to the Social Security rule that
deals with treating physicians:                                                   Writing that the “evidence of record does not indicate that
                                                                                [Respondent] has established the presence of complicated
    Generally, we give more weight to opinions from your treating               coal workers’ pneumoconiosis by chest x-ray,” the ALJ
    sources, since these sources are likely to be the medical                   never relied on x-ray evidence. (J.A. at 31.) This is
    professiona ls most able to provide a detailed, longitudinal
    picture of your medical impairment(s) and may bring a unique
                                                                                unsurprising given the paucity of x-ray analyses that support
    perspective to the medical evidence that cannot be obtained from            Respondent’s position. Only one of the six fully-credentialed
    the objective m edica l findings alone or from reports of                   readers found pneumoconiosis, and he did so based on a film
    individual examinations, such as consultative examinations or               taken ten years before Decedent died.15 (J.A. at 30-31.) Less
    brief hosp italizations. If we find that a treating source's opinion
    on the issue(s) of the nature and severity of your impairm ent(s)
    is well-supported by medically acceptable clinical and laboratory                15
    diagnostic techniques and is not inconsistent with the other                      And even the ALJ gave that read er’s opinion “little or no we ight”
    substantial evidence in yo ur case record, we will give it                  because Simmons, the reader:
    controlling weight.
                                                                                     vacillates in his deposition testimony as to whether he believes
20 C.F.R. § 404.152 7(d)(2). This further exemplifies the relevance of the           the miner had pneumoconiosis. Despite his status as a board-
distinction the Black & Decker Court drew between ERISA and Social                   certified radiologist and a B reader, he was unable to make a
Security. The Court, in effect, excused the treating physician rule in the           final determination on the existence or non-existence of coal
Social Security context because of the above-quoted regulatory mandate.              workers’ pneumoconiosis (CW P), as evidenced by his testimony.
See Black & Decker, 123 S.Ct. at 1971. The black lung situation,                     He first states that he read the chest x-ray as positive for CWP,
however, is much more like the ERISA issue before the Black & Decker                 but then states that his was probably “overreading.”
Court beca use no regulation mandates that either plan administrators or
ALJs handling black lung cases give treating physicians deference.              (J.A. at 32.)
No. 01-4064         Eastover Mining Co. v. Williams et al.             23     24   Eastover Mining Co. v. Williams et al.     No. 01-4064

qualified x-ray analysts reached myriad results, but the ALJ                  revealing severe restrictive and obstructive defects and
permissibly considered the readers’ respective qualifications                 arterial blood gas studies that indicated substantial
and appropriately discounted the opinions of those not fully                  impairments. On this basis, the ALJ gave greater weight to
qualified. See Staton v. Norfolk & W. Ry., 65 F.3d 55, 59 (6th                Wright’s opinion “on the issue of the existence of
Cir. 1995).                                                                   pneumoconiosis.” (J.A. at 35.) But Wright’s opinion is
                                                                              troubling because he only maintains board certifications in
  In addition to Woolum’s two letters, the ALJ considered                     anesthesiology and pain management, neither of which is
opinions from eight other physicians. For simplicity, one can                 germane here.        Moreover, Wright testified that
group these eight physicians into two categories: those                       pneumoconiosis was a substantial and contributing factor that
Respondent argues support her (Clarke, Penman, Powell, and                    led to the problems detected by the pulmonary function
Wright); and those who back Petitioner’s position (Simmons,                   studies and blood gas tests, but Wright also stated that
Powell, Anderson, Sargent, and Dahhan).                                       cigarette smoking was the predominant cause of Decedent’s
                                                                              lung disease. Wright testified:
   As the ALJ appropriately recognized, three of the opinions
offered by Respondent’s group (Clarke, Penman and Powell)                       COUNSEL: Getting right down to the nitty-gritty in
have very little significance because they “did not conduct                              this, Doctor, you don’t think this man’s
complete pulmonary evaluations of the miner” and “these                                  very poor pulmonary function is a result of
physicians based their opinions on the x-ray evidence, which                             [medical] pneumoconiosis, do you?
I have previously found not sufficient to establish the
existence of CWP [Coal Workers’ Pneumoconiosis].”16 (J.A.                       WRIGHT:      No.
at 32-33.) As we have concluded before, merely restating an
x-ray does not qualify “as a reasoned medical judgment.”                        COUNSEL: What is your opinion as their cause? [sic]
Cornett v. Benham Coal, Inc., 27 F.3d 569, 576 (6th Cir.
2000). Furthermore, an ALJ may not rely on a doctor’s                           WRIGHT:      His chronic obstructive lung disease with
opinion that a patient has medical pneumoconiosis when the                                   emphysema.
physician bases his opinion entirely on x-ray evidence the
ALJ has already discredited. Island Creek, 211 F.3d at 211-                     COUNSEL: And in your opinion, what is the most
12; Sahara Coal Co. v. Fitts, 39 F.3d 781, 783 (7th Cir.                                 probable or predominant cause of that
1994).                                                                                   disease?

  Although still problematic, Wright offered the most                           WRIGHT:      The predominant cause is probably
persuasive testimony on Respondent’s behalf. He based his                                    cigarette smoking.
conclusion partly on a putatively positive x-ray taken on
March 30, 1985, but also on pulmonary function studies                        (Dep. 21 at 362.) Even if one understands Wright to mean
                                                                              that smoking caused most of the problem, but medical
                                                                              pneumoconiosis still contributed to Wright’s poor pulmonary
                                                                              condition—that says nothing about the ultimate issue, which
    16
       Powell and P enman evid ently based the ir conclusions on film taken   is whether legal pneumoconiosis hastened Decedent’s death.
on November 26, 1984, and Clarke based his analysis on x-rays taken the       Recall that the ALJ concluded his discussion of Wright’s
following day.
No. 01-4064     Eastover Mining Co. v. Williams et al.     25    26    Eastover Mining Co. v. Williams et al.          No. 01-4064

testimony by explaining that he gave great weight to Wright’s    a pulmonary embolism; and (2) neither pneumoconiosis nor
opinion “on the issue of the existence of pneumoconiosis.”       COPD causes either gastrointestinal bleeding or pulmonary
(J.A. at 35) (emphasis added). Wright never testified that       embolism.     Therefore, Sargent concluded that
pneumoconiosis (legal or medical) hastened Decedent’s            pneumoconiosis, even if it existed, did not cause the miner’s
demise.                                                          death.
   The conclusions reached by Petitioner’s group of experts         The ALJ also struggled to dispatch with Dahhan’s opinion.
are somewhat more useful. The ALJ reasonably discounted          Dahhan, board-certified in pulmonary medicine, found no
Simmons’ contribution because Simmons seemed “equivocal          medical pneumoconiosis. The ALJ’s analysis of Dahhan’s
at best.” (J.A. at 32.) The ALJ also discredited Anderson’s      reasoning is somewhat desultory, but he seems to criticize
opinion because he did not do pulmonary function studies on      Dahhan for “fail[ing] to adequately explain why the miner’s
the miner and only “suspected” smoking caused the COPD.          37 year [mining] history has nothing to do with his lung
Sargent’s opinion, however, is more helpful, because Sargent,    condition,” and for neglecting that COPD falls within the
board-certified in pulmonary medicine, expressly concluded       definition of “legal” pneumoconiosis. (J.A. at 34.) It makes
that pneumoconiosis did not cause the miner’s death. The         no sense, however, to assume that because Dahhan does not
ALJ criticized Sargent’s analysis because Sargent never          explain why Decedent’s work as a miner has not caused his
examined Decedent and evidently relied on an incomplete          lung impairment, then his work as a miner must have caused
medical file that did not include pulmonary function studies.    his lung impairment.17 Furthermore, although Dahhan
Nevertheless, Sargent concluded that                             concluded that the miner had COPD, only COPD caused by
                                                                 coal dust constitutes legal pneumoconiosis. See 20 C.F.R.
  Very clearly, this man died of an acute event                  § 718.201(a)(2). Otherwise, everyone who developed COPD
  (gastrointestinal bleeding) during the time he was             from smoking would have legal pneumoconiosis. Dahhan
  hospitalized in July 1993. . . . Dr. Woolum thought that       concluded that the miner’s “death was contributed to greatly
  another possibility for cause of death was pulmonary           by his advanced chronic obstructive lung disease with no
  embolism. . . . Therefore, the cause of death is either        evidence that his death was contributed to or hastened by his
  gastrointestinal bleeding or pulmonary embolism, neither       exposure to coal dust or coal worker’s pneumoconiosis.”
  of which have been shown to be caused by                       (J.A. at 280) (emphasis added.)
  pneumoconiosis or chronic obstructive pulmonary
  disease.                                                          Thus, Dahhan did not, as the ALJ claims, ignore COPD.
                                                                 Rather, Dahhan stated that coal dust did not cause the COPD.
(J.A. at 285.) Again, the ultimate question is not whether       Most important, Dahhan appropriately addressed the real
Decedent had medical or legal pneumoconiosis, but whether        issue when he explained that “[Decedent’s] death would have
legal pneumoconiosis hastened his death. Even assuming,          been at the same time and the same manner regardless of his
arguendo, that access to pulmonary function studies would
have caused Sargent to reconsider his opinion that the miner
did not have medical pneumoconiosis, this ancillary point             17
                                                                        W hen Dahhan first examined Decedent in 1983, Dahhan concluded
does not implicate Sargent’s two primary conclusions             that smoking caused Decedent’s pulmonary pro blems. Likewise, Sargent
articulated in the above-quoted passage: (1) the miner died of   explained that Decedent’s blood gases showed severe hypox emic
an acute event, probably gastrointestinal bleeding but perhaps   hypercapnic respiratory failure on a chronic basis—a finding that
                                                                 indicates CO PD caused by sm oking, not pneumoconiosis.
No. 01-4064        Eastover Mining Co. v. Williams et al.                27   28     Eastover Mining Co. v. Williams et al.              No. 01-4064

exposure to coal dust or the presence of occupational                           Woolum’s testimony suffers from several serious problems
pneumoconiosis, since it was the result of an upper GI bleed,                 that render his opinion an inadequate basis for the ALJ’s
[a] condition of the general public at large.” (J.A. at 281.)                 conclusion unless his hypothesis receives disproportionately
                                                                              great weight simply because he worked as Decedent’s treating
  If one analyzed the evidence without the treating                           physician. Since no such presumption exists, there is no
physician’s opinion, it would be evident that substantial                     substantial evidence supporting the ALJ’s conclusion.
evidence does not support the ALJ’s conclusion that
Respondent met her burden of proof. Consider the evidence                       Circumstantial factors strongly indicate that Woolum
without Woolum’s input: Respondent offered no biopsy or                       changed his original opinion to meet Respondent’s needs. As
autopsy reports. Five of the six fully-qualified x-ray readers                summarized above, the original ALJ, Judge Rippey, held a
saw no pneumoconiosis, and the sixth (Simmons) was                            pre-hearing conference between the parties on February 14,
indecisive. None of the other medical evidence is incredibly                  1995. At that session, ALJ Rippey told Respondent’s counsel
compelling. The dispositive question is whether legal                         that he found Woolum’s initial letter insufficient to establish
pneumoconiosis contributed to the miner’s death. Only two                     that pneumoconiosis played a role in Decedent’s death.
physicians (Sargent and Dahhan), both specialists in                          Woolum’s first analysis stated “that this gentleman was
pulmonary medicine, addressed this issue, and both                            disabled secondary to his lung disease of which
concluded that coal dust-related disorders (legal                             pneumoconiosis, in my mind, was certainly a contributing
pneumoconiosis) did not hasten Decedent’s death.                              factor.” (J.A. at 72.) Woolum did not claim pneumoconiosis
                                                                              caused the miner’s death.
   In fact, without Woolum’s contribution, Petitioner would
have no argument but to infer that Decedent must have                            After Respondent’s attorney learned that Woolum’s initial
suffered from legal pneumoconiosis because he worked for                      conclusion would not suffice, Woolum drafted a new letter,
decades as a miner, and since he had legal pneumoconiosis,                    this time reckoning that, “within a reasonable degree of
it must have contributed to his death. Since this baseless                    medical probability,” pneumoconiosis “hastened [Decedent’s]
statement is grossly insufficient, the supportability of the                  death.” (Id.) Woolum wrote the first letter on February 24,
ALJ’s conclusion depends on Woolum, the treating                              1994, but did not write the second memorandum until March
physician.18                                                                  10, 1995—less than a month after the parties met with ALJ
                                                                              Rippey. Woolum treated Decedent for fourtneen years, but
                                                                              did not diagnose him with pneumoconiosis until after he
    18                                                                        allegedly died from it.
        Responde nt effectively concedes this. Again, the only relevant
issue is whether legal pneumoconiosis hastened Decedent’s death. In her
brief, Respo ndent writes:

    W ith respe ct to the issue of whether p neum oco niosis hastened         tidbits of x-ray and medica l evidence that she em phasizes elsewhere . The
    [Deced ent’s] death, the record contains five (5) sources of              death certificate lists the cause of death as a pulmonary embolism, caused
    evidence, including: the treatment notes of Dr. Jerry Woolum,             by COP D, itself due to an acute intestinal bleed. COPD qualifies as a type
    the miner’s treating physician; the death certificate; the                of legal pneumoco niosis only when caused by coal dust, not an acute
    testimony of Petitioner [Decedent’s wife]; the consultative report        intestinal bleed . Resp ond ent herself has no med ical knowledge and an
    of Dr. Dahhan and the con sultative report of Dr. Sarge nt.               obvious bias. The ALJ did not rely on her description of Decedent. That
                                                                              leaves only Sargent and Dahhan, who aid Petitioner’s case, and Woolum,
(Pet’r Br. at 17.) Notably, Respondent neglects to mention the various        the treating physician.
No. 01-4064        Eastover Mining Co. v. Williams et al.            29     30   Eastover Mining Co. v. Williams et al.      No. 01-4064

  This seems like a case in which the treating physician                    pneumoconiosis, his body lacked oxygen and excessively
wanted to help his patient’s family. Despite Woolum’s                       retained carbon dioxide. This weakened the miner, “played
almost certainly benevolent intent, the sequence of events                  an effect on all parts of his body,” and thereby hastened a
makes his new conclusion dubious.19                                         death that would have occurred anyway from the pulmonary
                                                                            embolus. (Id.) Even if this is an accurate medical conclusion,
   Notwithstanding Woolum’s significant credibility problem,                it is legally inadequate.
there are other reasons to doubt his conclusion. First, as ALJ
Rippey noted, even in his second letter, Woolum could only                     Again, Petitioner must show that pneumoconiosis
conclude with “a reasonable degree of medical probability”                  “hasten[e]d the miner’s death.” 20 C.F.R. § 718.205(c)(5).
that pneumoconiosis contributed to the miner’s death, rather                One can always claim, as Woolum did, that if
than the usual phrase, “reasonable degree of medical                        pneumoconiosis makes someone weaker, it makes them less
certainty.” (J.A. at 255-56.) (emphasis added.) It is unclear               resistant to some other trauma. If, for instance, a miner with
what “reasonable degree of medical probability” means. The                  pneumoconiosis gets hit by a train and bleeds to death,
more common “reasonable degree of medical certainty”                        Woolum (or someone adopting his position) would argue that
already reflects the incertitude inherent in medical                        the pneumoconiosis “hastened” his death because he bled to
conclusions—“certainty” in medicine only means “nearly                      death somewhat more quickly than someone without
sure” relative to the existential sense of the word “certain.”              pneumoconiosis. This is absurd, of course, and presumably
If a “medical certainty” is a conviction short of complete                  not what Congress meant by “hasten.” Under Woolum’s
certainty, then a “medical probability” must mean something                 interpretation, pneumoconiosis would virtually always
even less sure.                                                             “hasten” death to at least some minimal degree. Legal
                                                                            pneumoconiosis only “hastens” a death if it does so through
   Second, Woolum attempted to connect the pulmonary                        a specifically defined process that reduces the miner’s life by
embolism to Decedent’s mining history by surmising that,                    an estimable time. Woolum’s letter is conclusory and
although the pulmonary embolus directly caused the miner’s                  inadequate because Woolum just asserts that because (in
death, pneumoconiosis hastened his demise because the                       Woolum’s opinion) the miner had pneumoconiosis, the
miner’s “lack of oxygen [and] his retained carbon dioxide all               disease must have hastened his death.
played an effect on all parts of his body.” (J.A. at 277.) Put
differently, Woolum argued that because Decedent had                          Third, the ALJ ignores Woolum’s credentials. Woolum has
                                                                            no special expertise in reading x-rays, but the ALJ gave
                                                                            weight to Woolum’s x-ray analysis that he did not give to the
    19
                                                                            fully-credentialed readers who found no evidence of medical
        One could view the ALJ’s decision to cred it Woolum’s testimony     pneumoconiosis. Woolum has no board certification in
despite the surrounding circumstances as a “clearly erroneous” factual      pulmonary medicine, but the ALJ accepted Woolum’s
decision, but the ALJ is a judge of credibility and, however awkward the
situation, the ALJ may have b elieved W oolum alwa ys intended to express
                                                                            assertion that a coal dust-related ailment contributed to the
his honest belief that legal pneumoco niosis caused the miner’s death.      miner’s demise over the opinions of two board-certified
Even so, the problem with the pro ceed ings below is more legal mistake     pulmonary specialists who reached the opposite conclusion.
that factual error— assum ing W oolum’s op inion d eserved so me weight,
it does not alone constitute substantial evidence in Respondent’s favor       Although the DOL’s new regulations regarding treating
unless the AL J and the BRB afforded the treating physician’s opinion       physicians did not take effect until after the ALJ reached his
much greater significance that its inherent persuasive va lue warrants.
No. 01-4064         Eastover Mining Co. v. Williams et al.             31     32    Eastover Mining Co. v. Williams et al.            No. 01-4064

decision, they would not alter the outcome of this case.                        For all the aforementioned reasons, we REVERSE the
Under the new regulations, the ALJ must consider a multitude                  Benefits Review Board.
of factors that, viewed overall, simply ask whether the
treating physician has offered a persuasive opinion. See 20
C.F.R. § 718.104(d). In this case, he did not. To reach his
conclusion, the ALJ had to give preference to the treating
physician. Since that is impermissible, the BRB erred in
affirming the ALJ’s decision.20


    20
        There is another concerning issue, perhaps only a minor procedural
quirk. To receive benefits as a survivor, Respo ndent must show at least
that legal pneumoconiosis “hasten[e]d the miner’s death.” 20 C.F.R.
§ 718 .205 (c)(5). The initial opinion drafted by ALJ Kichuk concluded
that “the miner’s pneumoconiosis was a contributing factor in causing his
death.” In its second remand , the B RB instructed ALJ Kichuk “to
[re]consider whethe r the existence o f pneumo coniosis is estab lished.”
(J.A. at 47.) It seems unlikely and bizarre that the BRB could have meant
for the parties to relitigate the existence of legal pneumoconiosis but not
whether it caused the miner’s death. Put differently, it would be odd for
the BRB to have effectively concluded that “we don’t know whether the
miner had pneumoc oniosis, but if he did, it must have contributed to his
death.” On the second remand, the parties litigated both existence and
causation. The ALJ concluded that Resp ondent met her burden of
establishing the existence of legal pneumoconiosis,” but he never decided
whether he also thought Respondent met her burden of establishing that
legal pneumoc oniosis contributed to the miner’s death. Yet, in the third
BRB opinion (affirming the second remand), the BRB concluded that
“[i]nasmuch as the administrative law judge’s determination that claimant
established the existence o f pneumoc oniosis . . . and death du e to
pne um oco niosis . . . is supported by substantial evidence, we affirm the
administrative law judge’s award of survivor’s benefits.” (J.A. at 15)
(emp hasis added.) Since the ALJ opinion then under review never
concluded anything about causation, one wonders how the B RB could
affirm the ALJ’s conclusion that “death [was] due to pne umo coniosis.”
(Id.) This may render the BRB ’s third order unsupported by substantial
evidence. T he easiest solution may be to infer that the ALJ decision
following the second remand indirectly addressed both existence and
causation.
     The whole issue is immaterial because Resp ondent did not offer any
evidence of causation in the first two administrative hearings that she did
not offer again in the third. And, since the third BR B o rder is prop erly
before this Court, all conclusions d rawn b y that opinion are pro perly           The confusion, however, does emphasize the need for administrative
before us as w ell.                                                           bod ies to make the ir opinions clear.
