UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN J. RING TRUCKING COMPANY;
OLD REPUBLIC INSURANCE COMPANY,
Petitioners,

v.
                                                               No. 97-1018
CLAUDE E. MEADE; DIRECTOR, OFFICE
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(87-3252-BLA, 93-332-BLA)

Argued: March 6, 1998

Decided: April 13, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mark Elliott Solomons, ARTER & HADDEN, Washing-
ton, D.C., for Petitioners. Joseph E. Wolfe, WOLFE & FARMER,
Norton, Virginia, for Respondents. ON BRIEF: Laura Metcoff
Klaus, ARTER & HADDEN, Washington, D.C., for Petitioners.
Bobby Steven Belcher, Jr., WOLFE & FARMER, Norton, Virginia,
for Respondent Meade.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

From an award of black lung benefits to Claude Meade under 30
U.S.C. § 901 et seq., Meade's employer appealed to the Benefits
Review Board, arguing principally that the Administrative Law Judge
("ALJ") improperly applied the presumption afforded Meade under
20 C.F.R. § 727.203(a) in light of the Supreme Court's decision in
Mullins Coal Co. v. Director, OWCP, 484 U.S. 135 (1987). While the
Board agreed with the employer that the ALJ had improperly applied
§ 727.203(a), it affirmed the award of benefits on the basis that sub-
stantial evidence in the record nevertheless justified the award. We
affirm.

I

In April 1979, Meade filed an application with the Department of
Labor for black lung disability benefits under the Black Lung Benefits
Act. Over eight years later, his claim was heard by an ALJ, who
found, as a matter of uncontested fact, that Meade had 18 3/4 qualify-
ing years of coal mine employment and had last been employed in
late 1978 as a coal truck driver. The ALJ also found that Meade had
been a heavy smoker for approximately 30 to 40 years. Analyzing the
case under the framework set out in 20 C.F.R. § 727.203, the ALJ
concluded that the interim presumption that the claimant miner is dis-
abled due to pneumoconiosis was properly invoked under
§§ 727.203(a)(1), (2) and (4).

First, the ALJ noted that the record contained a total of 37 interpre-
tations of 9 x-rays and that all x-rays from 1966 to December 1986
were either unreadable or negative with respect to pneumoconiosis.
However, four films dated between December 1986 and June 1987
displayed mixed results. The readers whom the ALJ found most qual-
ified were doctors who were both board-certified radiologists and "B-

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readers," doctors who had passed a certifying examination. Of these
experts, Dr. DePonte read both the December 1986 film and the Feb-
ruary 26, 1987 films as positive for the presence of pneumoconiosis,
while Dr. McCluney read the June 1987 film as negative. Doctors
considered less qualified because they were not board certified also
split on their conclusions. Three of these B-readers found the Decem-
ber 1986 film to be negative, three others found the February 12, 1987
film to be positive, one B-reader disagreed with Dr. DePonte and
found the February 26, 1987 film to be negative, and one B-reader
agreed with Dr. McCluney and found the June 1987 film to be nega-
tive. The ALJ considered this x-ray evidence under the standard of
Stapleton v. Westmoreland Coal Co., 785 F.2d 424, 426 (4th Cir.
1986) (en banc) (holding that the interim presumption under
§ 727.203 could be invoked where there was credible evidence that
a single x-ray indicated the presence of pneumoconiosis or a single
qualifying pulmonary function study indicated the presence of chronic
respiratory or pulmonary disease), and concluded that there was suffi-
cient evidence to invoke the interim presumption. The decision in
Stapleton, however, was later reversed and a more stringent standard
adopted by the Supreme Court in Mullins Coal Co. v. Director,
OWCP, 484 U.S. 135 (1987), where the Court held that in order to
permit invocation of the interim presumption, the ALJ must weigh all
like-kind evidence and determine that a preponderance of the like-
kind evidence warrants invocation. See id. at 147, 159-60.

The ALJ also found that Meade had invoked the presumption pur-
suant to §§ 727.203(a)(2) and 727.203(a)(4). These provisions allow
for the invocation of the presumption if ventilatory studies "establish
the presence of a chronic respiratory or pulmonary disease" according
to the table in § 727.203(a)(2) or if the ALJ determines under
§ 727.203(a)(4) that "Other medical evidence, including the docu-
mented opinion of a physician exercising reasoned medical judgment,
establishes the presence of a totally disabling respiratory or pulmo-
nary impairment." With respect to subsection (a)(2), four pulmonary
studies were present in the record, from 1980, 1981, February 1987,
and June 1987. Both the FEV1 and MVV values in all four studies
were below the benchmarks set forth in the regulations, thus satisfy-
ing the standard for invocation of the interim presumption under sub-
section (a)(2). However, the ALJ found the MVV value of the 1980
test not reliable and noted a dispute between two doctors as to the

                    3
proper MVV value for the 1981 test, although both figures were
below the benchmark and satisfied findings of regulatory disability.

With respect to Meade's invocation of the presumption under sub-
section (a)(4), six doctors submitted evidence of their examinations of
Meade. As with their interpretations of the x-ray evidence, the doc-
tors' interpretations of their physical examinations produced conflict-
ing results. Some doctors diagnosed Meade with pneumoconiosis,
while others believed that there was no evidence of pneumoconiosis
and that whatever pulmonary dysfunction he had was attributable to
his many years of heavy smoking.

After concluding that the interim presumption had been properly
invoked, the ALJ found no evidence of rebuttal under any of the four
applicable subsections of 20 C.F.R. § 727.203(b). With respect to
subsection (b)(1), which allows rebuttal if the claimant has been per-
forming his usual mining work, there was no rebuttal since Meade
had not worked at all since 1978. Under subsection (b)(2), which
allows rebuttal if the claimant is capable of working, the ALJ found
no rebuttal since there was "reliable evidence of the Claimant's total
disability" from the pulmonary function studies in 1987, and since the
ALJ concluded that no doctor had expressed an opinion to counter the
consensus of the examining physicians that Meade was totally dis-
abled.

The most contested issue on rebuttal was presented under subsec-
tion (b)(3), which provides that the interim presumption may be
rebutted if the "evidence establishes that the total disability or death
of the miner did not arise in whole or in part out of coal mine employ-
ment" or, in other words, if the evidence in this case establishes that
Meade's disability resulted entirely from his smoking. Because the
ALJ found that the opinions of the doctors who believed that smoking
had caused Meade's respiratory ailments overlooked earlier evidence,
and because each of the doctors was found either to have missed criti-
cal opportunities to evaluate Meade or to have been equivocal in their
conclusions, he found "that the opinions of these three doctors are not
sufficiently probative to `rule out' a causational relationship between
the Claimant's total disability and his coal mine employment . . . . I
therefore find that rebuttal cannot take place under Section
727.203(b)(3)."

                    4
Finally, the ALJ found no rebuttal under subsection (b)(4), which
allows rebuttal if it can be shown that the claimant does not have
pneumoconiosis. In assessing this element, the ALJ gave "the greatest
weight" to the four most recent x-rays from 1986-87, since pneumo-
coniosis is a "progressive disease."* Weighing the qualifications of
the doctors, the ALJ concluded that "the x-ray evidence, as inter-
preted by the most highly qualified radiological diagnosticians, estab-
lishes the presence of pneumoconiosis." He also noted that "[e]ven if
I were to find that a simple B-reader was as well qualified as a Board-
certified radiologist who is also a B-reader, the x-ray evidence for and
against the existence of pneumoconiosis would be equivocal." Weigh-
ing the evaluations of the examining physicians, the ALJ stated, "I do
not find the conclusions of Drs. Garzon, Bercher, and Hippensteel
concerning the non-existence of pneumoconiosis to be reliable."
Thus, since he found that "it has not been demonstrated that the
Claimant did not have pneumoconiosis," rebuttal was unavailable
under subsection (b)(4).

The ALJ concluded therefore that the presumption invoked under
§ 727.203(a) had not been rebutted under § 727.203(b) and that
Meade was "entitled to benefits under the Act commencing as of the
first day of [the] month in which he filed his claim, April 1, 1979."

Shortly after the employer appealed the ALJ's decision to the
Board, the Supreme Court handed down its decision in Mullins, which
held that to find invocation of the interim presumption under 20
C.F.R. § 727.203(a), the ALJ must weigh all like-kind evidence and
determine that it is sufficient to establish invocation under the individ-
_________________________________________________________________

*The employer has argued that this premise is in error, citing to a
report of the Surgeon General for the proposition that pneumoconiosis is
not progressive. We do not resolve this dispute because we note that the
"pneumoconiosis" covered by the Black Lung Benefits Act is a legal
term of art rather than a clinical definition, see Barber v. Director, Office
of Workers' Compensation Programs, 43 F.3d 899, 901 (4th Cir. 1995),
and because the Supreme Court has taken notice of the fact that the legal
definition of pneumoconiosis is as a progressive disease. See Mullins
Coal Co. v. Director, OWCP, 484 U.S. 135, 151 (1987) ("`pneumo-
coniosis is a progressive and irreversible disease'" (quoting Elkins v.
Beth-Elkhorn Corp., 2 BLR 1-683, 1-686 (Ben. Rev. Bd. 1979))).

                     5
ual subsections by the preponderance of the evidence. See 484 U.S.
at 146-61. The Board recognized accordingly that the ALJ had used
the wrong legal standard in evaluating whether the presumption had
been invoked, but it held that the error was harmless, since the ALJ,
in weighing the x-ray evidence under subsection (b)(4) to determine
whether the presumption had been rebutted, had "properly found that
because pneumoconiosis is a progressive disease, the interpretations
of the four most recent x-rays are entitled to the greatest weight." The
Board also held that the ALJ had properly relied on the two positive
findings of pneumoconiosis by the board-certified B-readers versus
the one negative finding by a similarly qualified doctor "to the exclu-
sion of readings by physicians with lesser credentials to find the exis-
tence of pneumoconiosis established." The Board concluded that "we
affirm the [ALJ's] finding that the x-ray evidence establishes the exis-
tence of pneumoconiosis at subsection (b)(4) and apply this finding
to subsection (a)(1)."

The employer noticed this appeal, alleging that (1) the ALJ's appli-
cation of the wrong legal standard was not harmless error; (2) the
ALJ's rebuttal findings were flawed; and (3) the ALJ improperly
awarded benefits beginning at a date before the evidence established
the existence of pneumoconiosis.

II

The employer first contends that the ALJ's application of the incor-
rect standard of Stapleton v. Westmoreland Coal Co., 785 F.2d 424,
426 (4th Cir. 1986) (en banc), to his analysis of the x-ray evidence
was not harmless. We disagree. While we agree that the ALJ analyzed
the facts under the incorrect legal standard, we affirm because his
conclusions were nonetheless supported by substantial evidence.

The Board noted that the ALJ's weighing of x-ray evidence in
addressing the employer's effort to rebut the interim presumption
could be applied also to establish the presumption. While that may be
true in some instances, it cannot be true as a general proposition. The
Board must be cognizant that the burden in invoking presumptions
must be carried by the claimant and the burden on rebuttal must be
carried by the employer. Therefore, it does not follow that because the

                    6
employer failed in its rebuttal, that finding can automatically establish
that the employee carried his burden on invocation.

In this case, however, the ALJ's findings did not depend on
whether the burden was met. Rather, the ALJ concluded as a fact that
"the x-ray evidence, as interpreted by the most highly qualified radio-
logical diagnosticians, establishes the existence of pneumoconiosis."
Moreover, he also found that the conclusions of the doctors who
failed to find pneumoconiosis from the x-rays were not reliable.

In addition to those factual findings about the weight of the x-ray
evidence, the ALJ noted that the interim presumption could also be
invoked pursuant to §§ 727.203(a)(2) and (a)(4). Indeed, all of the
pulmonary function studies presented by the parties provide suffi-
ciently low MVV and FEV1 values to permit invocation under
§ 727.203(a)(2). While the employer conceded this conclusion at oral
argument, it maintained that invocation under § 727.203(a)(2) is
improper because the ALJ did not properly explain his holding.
Although the employer is correct that the Administrative Procedure
Act imposes upon an ALJ a duty to explain his holdings in order to
enable effective appellate review, see See v. Washington Metro Area
Transit Auth., 36 F.3d 375, 384 (4th Cir. 1994), we believe that in
light of the facts and circumstances of this case, an adequate explana-
tion was presented. Although the ALJ did not actually discuss the pul-
monary function studies in his footnote, the opinion itself contains a
summary of the studies, with credibility findings and conclusions
appended to the discussion. In addition, all of the studies before the
ALJ satisfy the objective criteria for invocation of the interim pre-
sumption pursuant to § 727.203(a)(2). Rather than requiring the ALJ
to state the obvious in these circumstances, we find it sufficient that
the opinion contains "`adequate information to accommodate a thor-
ough review,'" Washington Metro, 36 F.3d at 384 (quoting Director,
OWCP v. Congleton, 743 F.2d 428, 429 (6th Cir. 1984)). Accord-
ingly, we affirm the Board's conclusion that the record supports invo-
cation of the interim presumption under § 727.203(a).

III

The employer next contends that the ALJ erred in failing to find
that the evidence established proper rebuttal of the interim presump-

                     7
tion under 20 C.F.R. § 727.203(b). In particular, it maintains that the
ALJ erred in failing to find rebuttal evidence under§§ 727.203(b)(3)
and (b)(4), which provide for rebuttal of the presumption if all rele-
vant medical evidence "establishes that the total disability or death of
the miner did not arise in whole or in part out of coal mine employ-
ment; or . . . establishes that the miner does not, or did not, have pneu-
moconiosis."

The ALJ concluded with respect to the employer's proffered (b)(3)
rebuttal evidence that the employer had failed to establish that there
was no significant relationship between Meade's total disability and
his occupational dust exposure. Specifically, the ALJ relied upon the
fact that the employer's doctors overlooked the pulmonary function
study evidence and the more recent x-ray evidence, which tended to
establish that Meade had pneumoconiosis, to conclude that the
employer had failed "to `rule out' a causational relationship between
the claimant's total disability and his coal mine employment."
Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir. 1984).
In light of the fact that on this issue "the employer carries the burdens
of production and persuasion," Curry v. Beatrice Pocahontas Coal
Co., 67 F.3d 517, 520 (4th Cir. 1995), we cannot say that the ALJ's
conclusion that the employer had failed to meet its rebuttal burdens
was not supported by substantial evidence. See 33 U.S.C. § 921(b)(3);
see also Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949-50 (4th
Cir. 1997).

A similar analysis follows for the ALJ's finding of no (b)(4) rebut-
tal, which revolves around his conclusion that the employer did not
meet its burden of proving that Meade did not have pneumoconiosis.
The ALJ concluded that the x-ray interpretations by the most quali-
fied doctors, i.e., those who were both board-certified radiologists and
B-readers, established the existence of pneumoconiosis. He also con-
cluded that based "on the x-ray evidence and the positive diagnoses
of [two doctors], I find that it has not been demonstrated that the
Claimant did not have pneumoconiosis." Since there is substantial
evidence from which the ALJ could have reasonably concluded that
the employer had not proved that Meade did not have pneumoconio-
sis, we find that the ALJ did not err in concluding that the employer
did not meet its rebuttal burdens under (b)(4).

                     8
IV

Finally, the employer argues that the ALJ erred in failing ade-
quately to explain his finding that the onset of benefits to Meade was
effective as of April 1, 1979. The employer maintains that because the
ALJ did not make any findings with respect to the date of onset of
total disability, we should remand this case for such findings.

Section 725.503(b) of the regulations provides:"In the case of a
miner who is totally disabled due to pneumoconiosis, benefits are
payable to such miner beginning with the month of onset of total dis-
ability. Where the evidence does not establish the month of onset,
benefits shall be payable to such miner beginning with the month dur-
ing which the claim was filed." The evidence in this case is unclear
with respect to the date of onset of total disability. The employer con-
cedes that there is evidence of total disability in 1986, while Meade
argues that pulmonary function studies dating back to 1980 establish
total disability. The employer counters that these earlier studies have
been called into question by several physicians and should be dis-
counted. It is nevertheless the existence of this disagreement which
supports the conclusion that the evidence does not establish the month
of onset of total disability. Where the evidence as to date of onset is
unclear, the regulations provide that the ALJ may enter the award of
benefits effective on the month that the claimant filed his claim. This
is what the ALJ did.

For the foregoing reasons, the decision of the Benefits Review
Board is

AFFIRMED.

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