UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SEWELL COAL COMPANY,
Petitioner,

v.

BESSIE M. BRAGG, survivor of
                                                                No. 96-2512
Ronald Bragg; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(96-394-BLA)

Argued: June 6, 1997

Decided: July 11, 1997

Before HAMILTON and LUTTIG, Circuit Judges, and
GARBIS, United States District Judge for the
District of Maryland, sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY, Mor-
gantown, West Virginia, for Petitioner. G. Todd Houck, MOLER,
STATON & HOUCK, Mullens, West Virginia, for Respondents. ON
BRIEF: Kathy L. Snyder, JACKSON & KELLY, Morgantown, West
Virginia, for Petitioner.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Sewell Coal Company appeals from the Benefits Review
Board's affirmance of the Administrative Law Judge's award of bene-
fits pursuant to the Black Lung Benefits Act, 30 U.S.C. § 901 et seq.
to appellee Bessie Bragg, the widow of Sewell's former employee
Ronald Bragg. Because the ALJ failed to adequately explain its rea-
sons for crediting certain witnesses and discrediting others, we vacate
the Board's decision and remand with instructions to the Board to
remand to the ALJ for further proceedings.

Ronald Bragg worked in the coal mines for Sewell from 1969 to
1984; he died on February 2, 1992. The cause of his death is disputed,
with Bessie Bragg, his widow, claiming it to be the result, at least in
part, of his work in the coal mines, and Sewell arguing that some
other cause, possibly his exposure to moldy hay while working on a
landscaping project long after he had left Sewell's employ and after
which he developed pneumonia, led to Ronald Bragg's death. Conse-
quently, Bessie Bragg brought this claim for benefits under the Black
Lung Benefits Act, arguing that pneumoconiosis, or black lung dis-
ease, was a substantially contributing cause of her husband's death.

At the administrative hearing before the ALJ, evidence was pres-
ented both in favor of and against Bessie Bragg's claim that her hus-
band's work in the coal mines contributed to his death. As the ALJ
noted,

          the following doctors thought [that Ronald Bragg] had pneu-
          moconiosis: Drs. Andrada (who signed the death certifi-

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          cate), Rasheed [who performed the autopsy on Ronald
          Bragg], Gaziano, Ranavaya and perhaps Fino[,]

J.A. at 220-21, and that

          the doctors who thought [that Bragg] did not have pneumo-
          coniosis were the state Occupational Pneumoconiosis Board
          and Drs. Hansbarger, Kleinerman, Caffrey, Naeye, Hutchins
          and Bush.

J.A. at 221.

Based upon this conflicting evidence, it is possible that substantial
evidence would support a ruling either in favor of Bessie Bragg or in
favor of Sewell. That, however, is not the issue before us. Rather, as
we have repeatedly held, even where an ALJ's decision would other-
wise be supported by substantial evidence, that decision cannot stand
unless it is accompanied by explicit reasoning from which we can dis-
cern that the ALJ's decision is not arbitrary and capricious. Thus, in
Arnold v. Secretary of Health, Education and Welfare, 567 F.2d 258
(4th Cir. 1977), we reversed the ALJ's denial of benefits, finding that
the ALJ had failed to adequately explain the basis for its decision:

          Unless the Secretary has analyzed all evidence and has suf-
          ficiently explained the weight he has given to obviously pro-
          bative exhibits, to say that his decision is supported by
          substantial evidence approaches an abdication of the court's
          "duty to scrutinize the record as a whole to determine
          whether the conclusions reached are rational."

          Thus, we hold that the Secretary, in determining an appli-
          cant's entitlement to black lung benefits, must consider all
          relevant evidence, . . . and must indicate explicitly that such
          evidence has been weighed and its weight.

567 F.2d at 259 (citations omitted). And, in Jordan v. Califano, 582
F.2d 1333 (4th Cir. 1978), we reiterated:

          Before we determine the substantiality of the evidence to
          support the administrative determination, we first ascertain

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          whether the Secretary has discharged his duty to consider all
          relevant evidence. A bald conclusion, unsupported by rea-
          soning or evidence, is generally of no use to a reviewing
          court, except in the very rare instance when a case is so one-
          sided as to be obvious. This case is not within the exception.
          Moreover, conclusory administrative determinations may
          conceal arbitrariness.

582 F.2d at 1335.

Here, the ALJ credited the testimony of the autopsy prosector over
that of the non-examining pathologists, simply because the prosector,
unlike the non-examining doctors, had the opportunity to perform a
gross examination of Ronald Bragg's body; the ALJ, however,
nowhere explained why such gross examination made the prosector's
testimony more credible. Thus, in its original opinion, the ALJ recited
in detail the various conflicting testimony over the cause of Ronald
Bragg's death, but then explained that because Dr. Rasheed, the
autopsy prosector, and Dr. Andrada, the pathologist who signed the
death certificate, "actually examined the miner immediately after his
death[,] . . . [they were] more credible tha[n] . . . the Employer's doc-
tors who did not examine the miner, but only reviewed his [medical]
records." J.A. at 221. Finding this explanation inadequate, the Board
vacated the ALJ's decision, stating that, in addition to "first deter-
min[ing] the credibility and weight of the reviewing pathologists'
contrary opinions before according deference to the opinion of the
autopsy prosector," J.A. at 228 (emphasis added), the ALJ was
required to "provide an adequate rationale for concluding that the pro-
sector's gross examination provide[d] an advantage over the opinions
of the reviewing pathologists," J.A. at 228. On remand, however, the
ALJ merely stated that it had "consider[ed] all the medical evidence,
both pro and con . . . [and] assigned greater weight to the opinion of
Dr. Rasheed . . . [because] Dr. Rasheed examined [Ronald Bragg] and
performed the autopsy while the reviewing pathologists did not exam-
ine [him] and only reviewed his medical records and slides." J.A. at
225. The Board affirmed, J.A. at 235, and Sewell appealed.

It is possible that the ALJ might have believed that the testimony
of examining pathologists is always more credible than the testimony
of non-examining pathologists on the issues of both the existence of

                    4
pneumoconiosis and whether the pneumoconiosis contributed to the
coal miner's death; such belief on the existence of pneumoconiosis,
however, would have at least been drawn into question by the testi-
mony of the examining pathologist in this case. As Dr. Rasheed
explained, the determination of whether pneumoconiosis is present
depends largely on a microscopic examination of the decedent's
organs, as "[s]ometimes it[ ] [is] difficult to evaluate the[ ] features
[of pneumoconiosis] on a gross diagnosis. That's why sometimes you
will find quite a bit of discrepancies between a preliminary gross
diagnosis and a final diagnosis when it comes to pneumoconiosis."
J.A. at 154-55. And, as Dr. Rasheed herself confirmed, the non-
examining pathologists in this case had available to them all of the
information upon which she (Dr. Rasheed) based her conclusion, and,
consequently, the pathologists had sufficient information to evaluate
her conclusion as well as to form their own:

          Q. In your report, d[id] you describe all of your findings
          . . . both gross and microscopic? And then d[id] you
          preserve all of the slides for other pathologists.

          A. Yes.

          Q. As the original prosector, do you have any maybe
          secret findings, something you haven't described in
          your report or preserved on the slides?

          A. I should hope not. Why would I want to keep anything
          secret.

          Q. In view of that, would you say that someone who is
          reviewing your report or reviewing the autopsy slides,
          the microscopic slides, would be able to see and know
          everything that you'd know from doing the autopsy
          yourself?

          A. They would see everything I see and they should . . .
          be able to see everything I see, but people see and
          describe things differently. I mean, I don't think you
          can get two pathologists to say the same thing on any
          single slide . . . .

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          Q. And aside from that fact that pathologists disagree, its
          your testimony that you've provided everything in your
          written report that you . . . ascertained?

          A. Yes.

J.A. at 157-59.

From the foregoing, it appears at least arguable, though perhaps not
unassailable, that the non-examining pathologists in this case were in
at least as good a position to evaluate whether Ronald Bragg had
pneumoconiosis as it is defined in the regulations, see 20 C.F.R.
§ 718.201. However, Dr. Rasheed also noted that, as the autopsy pro-
sector, she was in a better position than the non-examining patholo-
gists to evaluate the destruction caused by Ronald Bragg's
pneumoconiosis. Therefore, it would have been permissible for the
ALJ to rely on Dr. Rasheed's opinion as the autopsy prosector to
resolve the conflict over the cause of Ronald Bragg's death but not
to resolve the conflict over the existence of pneumoconiosis in Ronald
Bragg's lungs in the first instance.*

We need not, however, decide this issue of whether the ALJ should
have accorded the non-examining pathologists more credit than it
actually did, or Dr. Rasheed less; that is not our concern. Rather, our
concern is with the ALJ's failure to confront this and other testimony
found throughout the record, and to explain the basis for his belief
that the examining pathologist in this case was in a better position to
determine both the existence of pneumoconiosis in Ronald Bragg's
lungs and whether that pneumoconiosis, if it existed, contributed to
Ronald Bragg's death, beyond the fact that only the examining
pathologist had the opportunity to perform a gross examination of the
decedent's body. Without such explanation, we cannot determine
whether the ALJ's bald conclusion was based on an arbitrary belief
that examining pathologists are necessarily better positioned to deter-
_________________________________________________________________
*Even Dr. Kleinerman, one of the experts relied on by Sewell, noted
the existence of a single nodule of silicosis, which is sufficient to meet
the definition of pneumoconiosis under the applicable regulation, see 20
C.F.R. § 718.210.

                    6
mine cause of death, or on a belief arrived at through consideration
of the competing evidence on the issue in this case.

Accordingly, we vacate the Board's decision, and remand to the
Board with instructions to remand the case to the ALJ for further pro-
ceedings consistent with this opinion.

VACATED AND REMANDED

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