UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM AUSTIN,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                       No. 94-1957
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
CLINCHFIELD COAL COMPANY,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(93-976-BLA)

Argued: April 7, 1995

Decided: May 5, 1997

Before WIDENER and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Petition granted. Vacated and remanded by unpublished opinion.
Judge Widener wrote the opinion, in which Senior Judge Phillips con-
curred. Judge Luttig concurred in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence Lee Moise, III, VINYARD & MOISE, Abing-
don, Virginia, for Petitioner. Timothy Ward Gresham, PENN, STU-
ART, ESKRIDGE & JONES, Abingdon, Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

The claimant, William Austin, appeals the denial of black lung
benefits, asserting that relevant medical evidence was not considered
and that the finding of rebuttal of the presumption of total disability
pursuant to 20 C.F.R. § 727.203(b)(3) in favor of Clinchfield Coal
Co., was not supported by substantial evidence. We agree that rele-
vant medical evidence was not considered and that the decision of the
Benefits Review Board affirming the decision of the ALJ was not
supported by substantial evidence. We grant the petition for review
and remand with instructions to award benefits.

I

Austin worked as an underground coal miner for at least 23 years,
performing jobs involving heavy labor, from around 1952 until March
1975. X-ray taken as early as 1972 revealed pneumoconiosis, and by
early 1974 he suffered progressively disabling symptoms of shortness
of breath, coughing, and pain in his chest on exertion. Between
November 1974 and February 1975, he experienced three or four epi-
sodes of a feeling of epigastric pressure, nausea, palpitations (flutter-
ing or rapid beating or pounding of the heart felt by the patient),1 and
tachycardia (abnormally rapid heart beat).2 He was admitted to the
local hospital by Dr. Robinson in February 1975 for evaluation. Labo-
ratory tests and electrocardiogram (EKG) showed no evidence of
heart disease and Dr. Robinson diagnosed psychophysiological car-
diovascular reaction3 and silicosis.4 Because of continuing pain inthe
_________________________________________________________________
1 J.E. Schmidt, M.D., Attorney's Dictionary of Medicine and Word
Finder P-21.
2 Schmidt, supra note 1, at T-6.
3 Psychophysiologic pertains to a physical disorder in which mental or
emotional disturbances play a causative or aggravating role. Schmidt,
supra note 1, at P-520.
4 Silicosis is a disease of the lungs caused by the prolonged inhalation

                    2
left lower chest area, Austin was referred by Dr. Robinson to the
Medicine Service at University of Virginia Hospital where he was
admitted on May 6, 1975 to the care of attending physician, Dr. Julian
Beckwith. An extensive cardiac and pulmonary evaluation revealed
no evidence of primary cardiac disease. Austin was discharged on
May 16, 1975 with a diagnosis of pneumoconiosis and with instruc-
tions not to return to work in the coal mines.

Austin filed a claim with the Industrial Commission for workmen's
compensation benefits under Virginia law on June 25, 1975. His
claim was denied because he had executed a waiver for occupational
pneumoconiosis as a condition of employment, which had been
approved by the Industrial Commission on advice of a physician that
examination of Austin's lungs revealed fibro-nodose infiltration. Fol-
lowing the subsequent determination on January 16, 1986 of his fed-
eral claim by the Deputy Commissioner that he was not entitled to
benefits, Austin requested and received a hearing before an adminis-
trative law judge which was held on March 9, 1988. However, the
ALJ became ill before rendering a decision, and the case was trans-
ferred to another ALJ5 who, with the agreement of the parties, made
factual findings on the prior hearing record.

The ALJ found that the claimant had pneumoconiosis, established
by x-ray, which was due to coal mine employment, and therefore was
entitled to the presumption of disability under 20 C.F.R.
§ 410.490(b)(1)(i) and (b)(2). He concluded, however, that the
employer had successfully rebutted total disability by proving that
Austin was able to do his usual coal mine or comparable work accord-
ing to 20 C.F.R. § 410.490(c). In reaching this conclusion, the ALJ
credited the opinions of three out of six physicians who opined that
the claimant's respiratory condition was not disabling. The ALJ
rejected the opinion of Dr. Beckwith who stated that Austin was dis-
_________________________________________________________________

of small particles of silicon dioxide. Schmidt, supra note 1, at S-155. Sil-
icosis is sufficient to establish pneumoconiosis. Zimmerman v. Director,
871 F.2d 564, 566 (6th Cir. 1989); 20 C.F.R. § 718.201.

5 Administrative Law Judge Everette E. Thomas.

                     3
abled from doing his regular work because he found the opinion was
not documented and therefore inadequately reasoned. 6

On review of that decision, the Benefits Review Board affirmed
that the x-ray evidence sufficiently established pneumoconiosis under
20 C.F.R. § 410.490(b)(1)(i). The Board determined, however, that
this invoked the presumption under 20 C.F.R. § 727.203(a)(1), and
remanded the claim for consideration under 20 C.F.R.§ 727. The
Board instructed the ALJ to compare the medical reports assessing the
claimant's physical abilities with the exertional requirements of
claimant's job duties. The Board pointed out that the issue on rebuttal
was not whether the medical tests had yielded qualifying values, but
whether the record as a whole established that the claimant was
totally disabled. The Board also instructed the ALJ to address the
opinion of Dr. Claustro, who had opined that the claimant's car-
diopulmonary system and function were within normal limits, as this
might be relevant to an inquiry under 20 C.F.R.§ 727.203(b)(3). The
Board noted that a finding of rebuttal under § 727.203(b)(4) was pre-
cluded as a matter of law, based on Mullins Coal Co. v. Director,
OWCP, 484 U.S. 135 (1987).

On remand, the ALJ considered the heavy labor requirements of
the claimant's job as instructed and determined that the employer had
failed to rebut, under C.F.R. § 727.203(b)(2), the interim presumption
of total disability. However, the ALJ found that the employer had
rebutted the presumption that the claimant's total disability arose out
of coal mine employment pursuant to § 727.203(b)(3) based on the
opinion of Dr. Sargent that the claimant's respiratory disability was
due to cardiovascular disease and asthma or chronic bronchitis. The
ALJ determined that the Board had affirmed his decision not to con-
sider the opinion of Dr. Beckwith. He did not, however, consider the
opinion of Dr. Claustro as instructed by the Board.

The decision of the ALJ was affirmed by the Board on June 21,
1994. The Board found that the ALJ properly refrained from consid-
ering Dr. Robinson's opinion under § 727.203(b)(3) because,
although Dr. Robinson had diagnosed the claimant as having silicosis,
_________________________________________________________________
6 Dr. Beckwith's opinion will be discussed in more detail later in the
opinion.

                    4
he offered no opinion regarding the cause of the claimant's disability.
The Board likewise found that the ALJ acted correctly in according
no weight to the opinion of Dr. Beckwith "by implicitly incorporating
the determination in his first Decision and Order that Dr. Beckwith's
opinion is not entitled to any weight inasmuch as the physician failed
to provide an explanation for his diagnosis that claimant was disabled
from doing his usual work because of silicosis." The Board also held
that "Dr. Beckwith's opinion is not entitled to greater weight on the
basis that the physician was chosen by a party other than counsel,
since the identity of a party who hires a medical expert does not, by
itself, demonstrate partiality or partisanship on the part of the physi-
cian." The Board went on to find that the ALJ permissibly credited
the opinion of Dr. Sargent that claimant's disability was "due to car-
diac conditions and asthma which were not related to his coal mine
employment" because it was "better supported by the underlying
objective evidence of record." What that evidence was the Board did
not relate.

II

Austin seeks review of the last decision of the Board. He asserts
that the Board erred in affirming the ALJ's decision because the ALJ
erred as a matter of law in failing to consider all relevant medical evi-
dence and that the finding of rebuttal under § 727.203(b)(3) is not
supported by substantial evidence, is not rational, and is not in accor-
dance with the law. The standard of review for errors of law is de
novo. Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th Cir. 1993).
However, findings of fact must be affirmed if supported by substan-
tial evidence. Thorn, 3 F.3d at 718.

To set the case before us properly, it has now been established that
Austin has pneumoconiosis due to coal mine employment, that he is
totally disabled from performing his usual or comparable work, and
that he is entitled to the presumption under 20 C.F.R. § 727.203(a)(1)
that his total disability is caused by coal miners' pneumoconiosis.
Those questions are beyond review. The only questions before us are
whether correct legal standards were used in the decision to deny ben-
efits and whether substantial evidence supports the finding that the
defendant ruled out any causal relationship between Austin's pneu-

                     5
moconiosis and his total disability. Bethlehem Mines Corp. v. Massey,
736 F.2d 120, 123 (4th Cir. 1984).7

III

A part of the Board's error is so patent as to require only brief com-
ment. The Board held that the opinions of Austin's treating physicians
were not entitled to any greater weight than any other opinion. That,
of course, is error. We had held in Thorn, 3 F.3d at 714, n.3, and
before, that the opinion of a claimant's treating physician should be
given great weight, although not dispositive. Drs. Robinson and Beck-
with were treating physicians, and they, Dr. Beckwith, especially,
who was in charge of Austin's ten-day hospital stay, were in the best
position of any of the physicians connected with this case to give their
opinions. Far from discounting the opinions of these physicians as
they did, both the ALJ and the Board should have accorded them
great weight and their refusal so to do might well have called for a
remand, at least, had there been no other error. But there was.

IV

We next address whether the Board erred in affirming the ALJ's
decision not to consider the opinion of Dr. Beckwith. The record
shows that Austin submitted copies of medical records of his hospital-
ization for treatment from May 5, 1975 through May 16, 1975 at the
University of Virginia Hospital.8 The Discharge Summary gives
patient history and the results of physical examinations and diagnostic
tests that were performed on Austin during his 10-day hospitalization,
including blood work, EKG, chest x-ray, lung scan, pulmonary func-
tion tests, and consultations by pulmonary specialists. The records
contain copies of the actual test results as well as daily progress notes
written by the treating physicians. While several physicians were
_________________________________________________________________
7 Neither the ALJ nor the Board considered whether or not Austin's
acknowledged black lung disease contributed to his disability. See gener-
ally, e.g., Massey and Adkins v. Dept. of Labor, etc., 824 F.2d 287 (4th
Cir. 1987). Because we require the award of benefits, we do not reach
this question.
8 Claimant's Exhibit No. 1. The ALJ recited that he had "sighted" each
exhibit.

                    6
involved in Austin's care at this teaching hospital, Dr. Beckwith is
listed as the attending physician, and it is obvious from the records
that he is the physician responsible for and directing Austin's diagno-
sis and treatment.9

The progress notes from this hospitalization contain daily hand-
written evaluations and impressions by Dr. Beckwith and the other
treating physicians. In his report to Dr. Robinson, the referring physi-
cian, dated May 28, 1975, Dr. Beckwith writes that Austin was found
to have silicosis with decrease in pulmonary function, and that he did
not think that Austin's pain or dyspnea were due to heart disease. In
his opinion, Austin was "disabled from doing his usual work because
of the silicosis."
_________________________________________________________________
9 The Discharge Summary states in part:

          The patient was evaluated by Dr. Beckwith which revealed heart
          of normal size and contour and no significant cardiovascular
          abnormalities. [Austin] underwent a Treadmill test, achieving 9
          Mets and a heart rate of 135 without occurrence of chest pain or
          ST changes on EKG. The test had to be stopped secondary to
          shortness of breath. The impression was that this chest pain was
          not of a cardiovascular origin. The patient also underwent pul-
          monary function studies which revealed significant decreases in
          vital capacity (39%, 63 predicted). FEV 1 (34 and 36% pre-
          dicted) and MMEFR (25% and 34% of predicted). PO was 60
          and 64, pCO2 31 and 35, pH 7.38, 7.4. CO2 diffusion was mark-
          edly decreased with values 23/34 on two occasions. For these
          values he was seen in consultation by the Pulmonary group who
          reviewed his chest films and believed them to show moderately
          severe fibrosis and small nodular disease consistent with pulmo-
          nary fibrosis. Although silicosis was the most likely suspect the
          patient was felt to be quite young and not to have had a large
          exposure. It was suspected that his pulmonary function studies
          were misleading secondary to the patient's noncompliance. At
          the recommendation of the Pulmonary Team the patient had an
          anti-tryptic activity scan and lung volumes performed pending at
          time of discharge. He also underwent a lung scan which was
          abnormal, revealing uptake in the apices bilaterally.

University of Virginia Hospital Discharge Summary for William Austin,
admitted 5-6-75, discharged 5-16-75.

                    7
This is the opinion that the ALJ found to be undocumented, and
thus not well-reasoned, and of no weight, which finding was affirmed
by the Board.

Far from being undocumented and not well reasoned, Dr. Beck-
with's opinion is documented as well as any physician's opinion that
this panel has examined in a black lung case. Even if there have been
filed better documented opinions, none has come to our attention.
Austin, who had not before filed a black lung claim, was sent to the
teaching hospital at the university by Dr. Robinson,"with particular
reference to the possibility of heart disease or possibly some anomaly
of the arteries leading to the left upper extremity," where he was
admitted for treatment and stayed about ten days. His attending physi-
cian was Dr. Beckwith. He was treated, or there participated in his
treatment, at that hospital, or he was examined by, at least 11 other
physicians in the various departments of the hospital, including, at
least, Drs. Hunt, Minor, Entelis, Fritz, Sheffer, Dec, Teates, Norden-
sell, Craddock, Feats, and Wood. The documentation filed with Dr.
Beckwith's letter discloses that Austin had been engaged in hard labor
in the mines. He had been a cutter, a brick layer, and a masonry assis-
tant, which involved carrying heavy loads of mortar and stone greater
than 100 lbs. several yards and flinging that load onto platforms and
work areas. The documents accompanying Dr. Beckwith's opinion
are everything which might be expected from a modern medical cen-
ter and consist of 69 pages of reports of every test and consultation
with respect to Austin's ailments.

We are thus of opinion that Dr. Beckwith's opinion was not only
well documented, it was well reasoned. Indeed, it is by far the best
documented and best reasoned opinion in this record.

We are further of opinion that the conclusions of the ALJ and the
Board, that the opinion of Dr. Beckwith was entitled to no weight, are
not only not supported by substantial evidence, they are contrary to
law. Both the ALJ and the Board simply declined to consider the most
probative evidence in the case.

V

If that were not all, the record shows further substantial error on the
part of the ALJ and the Board. As stated, we review only the decision
of the Board, that

                    8
          Claimant's total disability was due to cardiac conditions and
          asthma which were not related to his coal mine employment.

Decision of the Board of June 21, 1994, p.3. The Board specified in
its decision that this finding was based on the fact that the ALJ had
"permissibly credited the opinion of Dr. Sargent." Board decision of
June 21, 1994, p.3. Dr. Sargent was one of the physicians who exam-
ined Austin at the instance of the employer. There are two decisions
by the ALJ and two by the Board, and we have examined all of them.

Beside Dr. Beckwith, of the hospital at the university, the four
administrative decisions rely only on Drs. Buddington (Director),
Dahan (employer), Robinette (Austin), Modi (Austin), Sargent
(employer), Robinson (Austin), Claustro (Director), and Garzon
(employer), with the parentheses following the name to indicate who
introduced that physician's opinion into evidence. Drs. Dahan, Robi-
nette, Modi, Sargent and Garzon were Board certified internists. Dr.
Beckwith, obviously Board certified, was Chief of the Cardiology
Section at the University of Virginia School of Medicine. Whether or
not the other physicians were Board certified is not shown.

We have examined the testimony and statements of each of these
physicians whose opinions together make up all the medical evidence
on which the ALJ and the Board have relied to decide this case. None
of them except Dr. Sargent found "cardiac conditions" consisting of
"cardiovascular disease." None of them except Dr. Sargent found
asthma, either that Austin had asthma or that it was the cause of Aus-
tin's total disability. Neither the ALJ nor the Board accounted for this
wide discrepancy in the evidence. Indeed, neither mentioned the dis-
crepancy.

"[P]neumoconiosis means a chronic dust disease of the lung and its
sequelae including respiratory and pulmonary impairments. . . ." 20
C.F.R. § 718.201. All of the physicians whose testimony and reports
make up this medical record, except Drs. Beckwith and Robinson and
the other physicians at the university (who were treating physicians),
examined Austin especially on account of his claim of pneumoconio-
sis. The common name of the disease is even black lung. So those
physicians were examining Austin's lungs and respiratory system. If
asthma was present, it strains credulity to believe that only Dr. Sar-

                    9
gent correctly detected asthma. Dr. Beckwith and the other physicians
at the university commenced their examination of Austin because of
the reference of his local treating physician "to the possibility of heart
disease or possibly some anomaly of the arteries." Even on that track,
those physicians were of the opinion expressed by Dr. Beckwith, that
Austin had silicosis and not heart disease. Again, it strains credulity
to find that no other one of those physicians mentioned, except Dr.
Sargent, found that Austin had "cardiac conditions," as found by the
Board, consisting of "cardiovascular disease" in the words of Dr. Sar-
gent. And the physicians at the university also did not find asthma.

Not a scrap of paper in this record, except the opinion of Dr. Sar-
gent, is inconsistent with the opinion of Dr. Beckwith, that Austin had
silicosis and that Austin was disabled from doing his usual work
because of the silicosis. The evidence is simply overwhelming that
the opinion of Dr. Beckwith is correct, and we so find. Not another
scrap of paper in this record is consistent with the opinion of Dr. Sar-
gent that Austin had asthma; not one other physician so found.

VI

In ordinary circumstances, we are not supposed to weigh evidence
in such a case, and we rarely do. The claim of Austin, however, has
been pending for more than 20 years. He has been examined by prob-
ably two dozen physicians. No one has suggested any medical test rel-
evant to his claim which has not been performed. The evidence is
simply overwhelming that he has pneumoconiosis and that he is
unable to perform his usual coal mine employment on that account.

We are of opinion that substantial evidence does not support the
finding of rebuttal under 20 C.F.R. § 727.203(b)(3).

We are of opinion that the findings of both the ALJ and the Board,
that the report of Dr. Beckwith was not entitled to any weight, is not
only not supported by substantial evidence, it is contrary to law. See
5 U.S.C. § 706; 33 U.S.C. § 921(b)(3).

We are of opinion that the finding of the Board, that Austin's total
disability was due to cardiac conditions and asthma, is not supported
by substantial evidence.

                     10
It is time for this case to end. We vacate the order of the Board and
remand the case to the Board, which will see to the entry of benefits
for Austin. See Petry v. Califano, 577 F.2d 860, 867 (4th Cir. 1978).

PETITION FOR REVIEW GRANTED; VACATED
AND REMANDED WITH INSTRUCTIONS

                    11
