                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-1068


SEWELL COAL COMPANY,

                Petitioner,

           v.

WILLIAM   O.   DEMPSEY;       DIRECTOR,      OFFICE   OF     WORKERS’
COMPENSATION PROGRAMS,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(09-0151-BLA)


Argued:   March 25, 2011                         Decided:    May 19, 2011


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Affirmed   in  part,   vacated   in  part,   and           remanded     with
instructions by unpublished per curiam opinion.


ARGUED: Douglas Allan Smoot, JACKSON KELLY, PLLC, Charleston,
West Virginia, for Petitioner.    John C. Eller, WASHINGTON AND
LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia; Barry H.
Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.   ON BRIEF: Kathy L. Snyder, JACKSON KELLY, PLLC,
Charleston,  West   Virginia,  for   Petitioner.     Timothy  C.
MacDonnell, L. Lucy Brandon, WASHINGTON AND LEE UNIVERSITY
SCHOOL OF LAW, Black Lung Legal Clinic, Lexington, Virginia, for
Respondent Dempsey. M. Patricia Smith, Solicitor of Labor, Rae
Ellen James, Associate Solicitor, Patricia M. Nece, Counsel for
Appellate   Litigation,  UNITED   STATES  DEPARTMENT   OF   LABOR,
Washington, D.C., for Federal Respondent.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        In this petition for review, Sewell Coal Company contends,

among other things, that the Benefits Review Board (“the Board”)

erred in affirming the decisions of the Administrative Law Judge

(“the    ALJ”)    who,       after      finding       respondent          William      Dempsey’s

second    claim       for    benefits       timely      filed,       awarded         Black      Lung

benefits.        For    the       reasons      set    forth    below,           we    affirm     the

Board’s    Decision         and    Order    of      November        25,    2009       as   to    the

timeliness of Dempsey’s claim.                      However, because the ALJ failed

adequately       to    explain       his     reasoning         in     evaluating           opinion

evidence, we vacate the November 25, 2009 and March 31, 2005

Decisions    and       Orders      of    the     Board    as    to        the    existence        of

pneumoconiosis         and    total      disability,       and       remand          for   further

proceedings.



                                               I.

     This case comes before the Court for the second time.                                       As

we previously discussed:

          William Dempsey worked in the coal mine industry
     for approximately twenty-three years.       He worked
     specifically for Sewell Coal for more than eleven
     years, most recently as a belt repairman.        After
     leaving Sewell Coal, Dempsey worked for Dale and Tina
     Coal Company for approximately three months and for DC
     & M Coal Company for nearly five months, before
     retiring from the coal mine industry in 1989. Dempsey
     filed his first claim for benefits under the [Black
     Lung Benefits Act, 30 U.S.C. §§ 901 et seq, (“the
     BLBA”)] on April 27, 1989.   That claim was denied on

                                                3
       August 15, 1989, because the evidence did not then
       establish   that Dempsey was  totally  disabled by
       pneumoconiosis.

                                    * * *
       . . . Dempsey filed his second claim for Benefits
       under the [BLBA] on February 8, 2001.      The district
       director awarded benefits under Dempsey’s claim on May
       29, 2002, and an [ALJ] subsequently reviewed the
       claim, finding Dempsey totally disabled substantially
       due to pneumoconiosis.    Having also found the claim
       timely   after   concluding   that   the   statute   of
       limitations did not apply to subsequent claims for
       benefits, the ALJ issued a decision awarding benefits.
       The [Board] vacated the ALJ’s decision awarding
       benefits and remanded for further consideration on
       evidentiary issues.    The ALJ again awarded benefits
       and the Board affirmed. Sewell Coal Company . . . the
       mine operator responsible for paying benefits, [then]
       petition[ed] for review of the Board’s Order.

Sewell Coal Co. v. Director, O.W.C.P., 523 F.3d 257, 258 (4th

Cir.   2008)   (internal     citation       and   footnote   omitted).       After

vacating     the   ALJ’s   timeliness   determination,        id.    at   259,   we

remanded     the    case     for   further        proceedings,      but    without

adjudicating the merits as to the finding of pneumoconiosis.

Id.     On   remand,   the   ALJ   again     awarded   benefits     to    Dempsey.

Thereafter, Sewell appealed to the Board, which affirmed the

ALJ’s decision, two votes to one.

       Sewell Coal now brings the instant petition, arguing the

ALJ incorrectly determined that Dempsey’s 2001 application for




                                        4
benefits was timely filed and failed to explain why he credited

certain expert opinions over others. 1



                                       II.

       “When we review a claim for benefits under the BLBA, ‘[w]e

undertake an independent review of the record, as in the place

of the Board, to determine whether the ALJ’s factual findings

are based on substantial evidence in the record.’”                 Sewell Coal

Co., 523 F.3d at 259 (quoting Toler v. E. Associated Coal Co.,

43 F.3d 109, 114 (4th Cir. 1995)).             Substantial evidence “is

such   relevant    evidence   as   a   reasonable   mind   might    accept   as

adequate   to   support   a   conclusion”;    it    is   “more   than   a   mere

scintilla.”       Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528

(4th Cir. 1998) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)).      “In determining whether substantial evidence


       1
       Sewell Coal also raises a host of evidentiary issues,
including that the ALJ erred by: (i) finding Dempsey showed good
cause to submit late evidence; (ii) improperly denying Sewell
Coal’s rights to due process and a fair hearing by requiring it
to disclose prematurely its affirmative case and by refusing to
allow it to rely on the medical reports of its choice; (iii)
failing to find various exhibits admissible under the “good
cause” exception of the amended regulations; (iv) excluding
Sewell Coal’s rebuttal evidence and certain treatment records.
For the reasons set forth in the Board’s Decisions and Orders,
we find that the ALJ did not so err. We therefore confine our
discussion to Sewell Coal’s arguments concerning the timeliness
of Dempsey’s second claim for benefits and the ALJ’s evaluation
of opinion evidence.



                                        5
supports the ALJ’s factual determinations, we must first address

whether    all    of    the    relevant     evidence         has    been    analyzed    and

whether    the    ALJ   has     sufficiently        explained        his    rationale    in

crediting     certain     evidence.”            Id.    at     528    (citing    Sterling

Smokeless Coal Co. v. Akers, 131 F.3d 438, 439 (4th Cir. 1997)).



                                          III.

                                           A.

      We first consider whether Dempsey timely filed his second

claim for benefits on February 8, 2001.

      A   letter    submitted      to     the   West    Virginia       State    Board    of

Rehabilitation in July 1989 by Dr. J. David Brown, Dempsey’s

treating physician, reflects that Dr. Brown informed Dempsey of

his   pneumoconiosis          diagnosis    in    February      of    that    year. 2     On

October 17, 1989, Dr. Brown sent a follow-up letter to the Board

indicating that, during Dempsey’s August 29, 1989 office visit,

Dr.   Brown      told   Dempsey      “that      I     felt     he    was    totally     and



      2
       While it is true that Dr. Brown’s July 1989 letter
indicates he “advised [Dempsey] to stop working in coal mines
due to his diagnosis of COPD due to pneumoconiosis,” it does not
indicate that Dempsey was totally disabled as a result of
pneumoconiosis.   J.A. 57.   In any event, Sewell Coal concedes
that “Brown’s first letter is insufficient by itself to render
the claim untimely. . . .”      Br. for Petitioner at 20; see
Consolidation Coal Co. v. Williams, 453 F.3d 609, 616-18 (4th
Cir. 2006).



                                            6
permanently disabled.”               J.A. 60.      Sewell Coal contends 3 that

these     letters,     considered      together,       establish      that     Dr.    Brown

communicated     to    Dempsey       that   he   was    totally       disabled       due   to

pneumoconiosis        in    1989.      Thus,     Sewell    Coal’s      argument       goes,

because Dempsey did not file his second claim before 1992, he

failed to comply with the three-year limitations period and his

claim should be dismissed as untimely.                  We disagree.

      20    C.F.R.     §     725.308(a)     provides       that       “[a]    claim        for

benefits . . . shall be filed within three years after a medical

determination of total disability due to pneumoconiosis which

has been communicated to the miner or a person responsible for

the care of the miner.”              All claims are presumed timely, absent

evidence to the contrary.             20 C.F.R. § 725.308(c).                Furthermore,

as   Sewell    Coal    acknowledges,        we   have     held    a   finding     that      a

claimant    is   not       totally   disabled     due     to   pneumoconiosis         in    a

prior claim renders any earlier medical determination to the

contrary      insufficient      to    trigger     the   statute       of     limitations.

See Consolidation Coal Co. v. Williams, 453 F.3d 609, 618 (4th


      3
       At argument, Sewell Coal appeared to argue that Dempsey
had been informed that he was disabled due to pneumoconiosis in
1989.    At our request, Dempsey filed a supplemental letter
brief, which indicates that while Dempsey may have been informed
that he suffered from pneumoconiosis, there was no conveyance of
the fact that he was totally disabled due to that condition.
See No. 10-1068, Doc. # 45 at 2; see also 20 C.F.R. § 718.204
(defining “total disability”).



                                            7
Cir.    2006)       (“[A]   medical     determination        later    deemed          to    be   a

misdiagnosis of pneumoconiosis by virtue of a superseding denial

of   benefits         cannot    trigger      the    statute     of    limitations            for

subsequent claims.”).

        Here,    Dr.    Brown’s      July    1989    letter    was    followed          by    the

denial     of       Dempsey’s       1988    black     lung     claim,       which,         under

Williams,       rendered       Dr.    Brown’s       February    1989       pneumoconiosis

diagnosis a misdiagnosis.               See 453 F.3d at 616.               Moreover, even

if we were to consider the first letter, it fails to specify

which    of     the    myriad       conditions      listed     by    Dr.    Brown          caused

Dempsey’s disability.                See J.A. 56-58 (explaining Dempsey “is

totally       and     permanently      disabled      from     any    type        of    gainful

employment due to his diagnoses stated above,” which apparently

included B.P.H. with secondary acute prostatitis and intercostal

neuritis and radiculitits) (emphasis added).

        Consideration          of    the    second     letter        does    not           render

Dempsey’s       second      claim    for    benefits    untimely.           As    the       Board

reasoned:

        In weighing [Dr. Brown’s letters], the administrative
        law judge permissibly found that none of Dr. Brown’s
        statements established that Dr. Brown specifically
        communicated to claimant that he was totally disabled
        due [to] pneumoconiosis. . . .

        As noted by the administrative law judge, although Dr.
        Brown wrote, in the first part of his October 1989
        letter, that he had informed claimant that he was
        totally disabled, the doctor “did not indicate the
        cause of the disability was due to pneumoconiosis.”

                                              8
       Moreover, the administrative law judge reasonably
       found it was unclear from Dr. Brown’s second statement
       in the October 1989 letter whether he had communicated
       to claimant his “feeling” that claimant was totally
       disabled as a result of severe shortness of breath and
       COPD.

J.A. 708-09 (internal citations omitted).

       Simply put, we see no reason to disagree with the Board’s

analysis.          Because Dr. Brown’s letters fail to establish that

Dempsey was informed that he was disabled due to pneumoconiosis,

Sewell      Coal    has     not   rebutted    the       presumption      that    Dempsey’s

claim was timely filed.

                                             B.

       Sewell Coal contends further that although Drs. Joseph J.

Renn       III,    Robert    A.C.   Cohen,        and    Donald    L.    Rasmussen     each

reviewed      excluded       evidence,   the       ALJ    engaged       in   a   prohibited

selective         analysis    of    opinion       evidence    by    discrediting       Dr.

Renn’s assessment while finding the opinions of Drs. Cohen and

Rasmussen well-reasoned. 4            In Sewell Coal’s view, “[i]n lieu of

rational, detailed explanation, [the ALJ] simply parroted the

doctors’ findings in his decision without discussing how or why

the determinations of those doctors are more convincing than


       4
       Sewell Coal also argues that the ALJ failed to explain why
he credited Dr. Dominic Gaziano’s opinion and failed to consider
Dr. John A. Bellotte’s assessment. We have reviewed the record
and, for the reasons stated by the Board in its June 28, 2004
Decision, find no error by the ALJ.



                                              9
[those of] the other experts.”                 Br. for Petitioner at 43.          In

other words, Sewell Coal contends the ALJ failed adequately to

explain     his     reasoning   as        required   by    the      Administrative

Procedure Act, 5 U.S.C. § 557(c)(3)(A) (“the APA”).

      With respect to Sewell Coal’s argument that the Rasmussen

opinion should be discredited because Dr. Rasmussen considered

excluded evidence, there is substantial evidence in the record

to support the ALJ’s finding that Dr. Rasmussen did not rely on

the   inadmissible     evidence      in    forming   his    opinion.        The   ALJ

summarized the evidence used by Dr. Rasmussen and concluded that

while he performed an inadmissible, independent review of an x-

ray, he in fact based his medical opinion on the interpretation

of that x-ray by Dr. Manu N. Patel – an interpretation that was

admitted into evidence.         We find no error in this determination

by the ALJ.

      We cannot say the same, however, for the ALJ’s evaluation

of the expert opinions of Drs. Cohen and Renn, which fails to

provide adequate explanation for his conclusions.                    See 5 U.S.C.

§ 557(c)(3)(A); see also Barren Creek Coal Co. v. Witmer, 111

F.3d 352, 354 (3d Cir. 1997) (“The absence of explanation in

certain     portions    of   the     ALJ’s      Decision    and     Order   renders

meaningful review impossible by this court, as we are unable to

determine     the    analytic   process         behind    the     result.”).      As

correctly explained in the Board dissent:

                                          10
          The evidentiary limitations of Section 725.414
     were intended to level the playing field between
     operators and claimants and to ensure fairer and more
     equitable evaluations of black lung claims. The
     regulations further guard against the consideration of
     excess medical evidence by providing that medical
     reports be based only on admissible evidence. As the
     regulations    are      silent     concerning    how   an
     administrative law judge should evaluate a medical
     report which contains references to evidence that has
     been excluded under the limitations, the Board has
     held that the disposition of this issue is a matter
     within the discretion of the administrative law judge.
     In   exercising     this     discretion,    however,  the
     administrative    law     judge    must    reconcile  his
     obligations   under    Section    725.414(a)(2)(i)[  and]
     (a)(3)(i), with his statutory obligation to consider
     all of the relevant and material evidence bearing upon
     the   existence    of     pneumoconiosis.    Because  the
     administrative law judge focused on the number of
     inadmissible exhibits Drs. Renn and Cohen had each
     reviewed, without considering what effect, if any, the
     inadmissible evidence had on the physicians’ opinions,
     I would hold that the administrative law judge failed
     to sufficiently analyze the medical opinion evidence
     or explain his conclusion that Dr. Cohen’s opinion is
     entitled to greater weight than that of Dr. Renn.

J.A. 676-77 (internal citations omitted).

     Tasked   with   evaluating   conflicting   medical   opinions   from

two doctors who reviewed excluded evidence, the ALJ discredited

Dr. Renn’s opinion in favor of Dr. Cohen’s. 5        In so doing, the


     5
         Sewell  Coal  additionally   contends    that   the   ALJ
mischaracterized Dr. Renn’s opinion by noting “Renn concluded
that Claimant does not have coal workers’ pneumoconiosis because
the chest x-rays revealed irregular opacities and there were no
opacities in the upper lung zones. . . . every physician [who]
noted   the   location  of   the   opacities   on    their   x-ray
interpretations found opacities in all six lung zones.”      Brief
for Petitioner at 27 (quoting J.A. 660) (added emphasis
omitted). The ALJ’s statement is misleading, if not erroneous.
(Continued)
                                   11
ALJ focused on the quantity of excluded evidence each doctor

reviewed, rather than on the extent to which each opinion relied

on the excluded materials.          To allow an ALJ to discredit one

opinion   and   to     credit   another    based   on    the     percentage   of

excluded evidence considered by each doctor would, at bottom, be

to allow nothing more than a “headcount” of evidence.                    And of

course, ALJs are not permitted to decide a disputed issue of

medical fact by a headcount.         See Adkins v. Dir., O.W.C.P., 958

F.2d 49, 52 (4th Cir. 1992); see also Stalcup v. Peabody Coal

Co., 477 F.3d 482, 484 (7th Cir. 2007) (“[W]hen an ALJ is faced

with conflicting evidence from medical experts, he cannot avoid

the scientific controversy by basing his decision on which side

has   more   medical    opinions   in     its   favor.         This   unreasoned

approach, which amounts to nothing more than a mechanical nose




     In his first opinion, the ALJ stated “Gaziano is the only
physician who found opacities in the lower four lung zones on
one x-ray, but he also found opacities in six lung zones on
another x-ray.” J.A. 556 (emphasis added). Hence, although all
the x-ray evidence did not note opacities in six lung zones, the
ALJ’s observation that all physicians who noted opacities found
opacities in all six lung zones is not entirely inaccurate.
But, drawing on this misleading statement, the ALJ erred by
finding “that Dr. Renn’s opinion [that there were no opacities
in the upper lung zones] is not reasoned because it is not based
on the chest x-ray evidence in the record.”    J.A. 660.   After
all, one of Gaziano’s x-rays does suggest the upper lung zones
were free from opacities.     See J.A. 53.    The ALJ therefore
should not rely on his statement concerning the number of
physicians who found opacities on remand.



                                     12
count    of      witnesses,         would        promote       a    quantity-over-quality

approach to expert retention, requiring parties to engage in a

race to hire experts to insure victory.”) (internal quotation

and citations omitted).

       When    an    ALJ,     in    weighing          evidence,       merely       tallies    the

quantity of excluded exhibits opposing experts reviewed, just as

when    he    counts    the      number     of    experts      on     a   given      side    of   a

medical dispute, the ALJ fails to consider the merits of the

medical evidence before him.                      We cannot tell from the ALJ’s

decision      how,     if   at     all,   the     excluded         evidence        affected   the

opinions of either Dr. Renn or Dr. Cohen.                                 Moreover, setting

aside the CT scan interpretations reviewed by Dr. Cohen, it is

clear from the ALJ’s decision that both physicians reviewed the

same number of admissible x-rays.                       But the ALJ failed to give a

reasoned      explanation          of   how      all    this       evidence      affected     the

respective medical opinions.

       The    ALJ    thus     committed          reversible         error     in    failing       to

“determine whether either physician actually relied upon, rather

than    merely      reviewed,       evidence          which   is    not     in     the   record.”

J.A. 677.        Whether or not Dr. Cohen’s or Dr. Renn’s opinion

finds support in admitted evidence — a question we reserve for

the ALJ — the ALJ failed to provide sufficient explanation for

his acceptance of Dr. Cohen’s opinion and the rejection of Dr.



                                                 13
Renn’s. 6     Because this error affected not only the ALJ’s finding

as   to     the   existence         of   pneumoconiosis       but   also    as   to     the

existence of total disability, we vacate both conclusions.

      Having agreed with the Board’s dissent, we now adopt, in

part, its suggested remand instructions.                       On remand, the ALJ

should      reconsider      the      opinions     of   Drs.   Renn    and    Cohen      and

determine whether their opinions are based in any material part

on excluded evidence.                If the ALJ determines an opinion has

improperly        relied    on      evidence      outside     the    record,     he     may

consider      whether      to    redact    the    excluded     materials,        ask    the

physician     to    submit      a    new   report,     evaluate     the    extent      of   a

      6
       The ALJ’s failure to explain why he credited certain
evidence extended beyond his treatment of Drs. Renn and Cohen.
Having reviewed the record, we find the ALJ failed adequately to
explain why he found the opinion of Dr. Mark Wantz to be well-
reasoned.   See, e.g., Hicks, 138 F.3d at 532 n.9 (“In weighing
opinions, the ALJ is called upon to consider their quality,
taking into account, among other things, the opinions’ reasoning
and detail of analysis.”) (citation and internal quotations
omitted). Furthermore, in analyzing the opinions of Drs. Jerome
Wiot, Michael Alexander, and Patel, the ALJ appears incorrectly
to have placed controlling weight on which viewpoint, Dempsey’s
or Sewell Coal’s, found more supporters. Moreover, because Dr.
Wiot, like Drs. Alexander and Patel, is a dually qualified
physician, the ALJ’s conclusory statement that dually qualified
physicians’ opinions are entitled to more weight fails to
explain why he gave greater weight to Alexander’s and Patel’s
opinions.    While a closer question than that presented with
respect to Drs. Cohen and Renn, we find the ALJ’s evaluation of
the Wantz, Wiot, Alexander, and Patel opinions lacking and
accordingly vacate those determinations.    On remand, the ALJ
should consider more explicitly the opinion of Dr. Wantz and
reweigh the opinions of Drs. Wiot, Alexander, and Patel
accordingly.



                                             14
physician’s reliance upon the excluded evidence, or, as a last

resort,   exclude     the   report    from    the       record.        Additionally,

before reweighing the opinion evidence described herein, the ALJ

is directed to reconsider more fully the opinion of Dr. Wantz.

The ALJ shall then “reweigh all of the medical opinion evidence

of record and determine whether it supports [] finding[s] of the

existence     of     pneumoconiosis        [and     total    disability]         under

Section[s] 718.202(a)(4) [and 718.204].”                J.A. 678.



                                       IV.

     For the foregoing reasons, we affirm the Board’s decision

as to the timeliness of Dempsey’s application and as to the

other   issues     raised   by    Sewell    Coal    Company       as   reflected    in

footnote 1.        We vacate the Board’s decision as to the findings

of   pneumoconiosis     and      disability       and   remand     this   case     for

further proceedings in conformity with this opinion.



                                       AFFIRMED IN PART, VACATED IN PART,
                                           AND REMANDED WITH INSTRUCTIONS




                                       15
