Opinion · Court of Appeals for the Fourth Circuit
Westmoreland Coal Company v. Jarrell Cochran
Westmoreland Coal Co. v. Jarrell Cochran, 718 F.3d 319 (4th Cir. 2013)
- Type
- Opinion
- Court
- Court of Appeals for the Fourth Circuit
- Jurisdiction
- Federal
- Date
- 2013-06-04
- Topic
- general
concluding that an administrative law judge provided a sufficient rationale to find legal pneumoconiosis because the experts had “primarily concentrated on explaining why they believed the miner did not suffer from clinical pneumoconiosis” | affirming ALJ’s reliance on medical expert who testified affirmatively that both coal mine dust and cigarette smoke were causes of the claimant’s disability
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1839
WESTMORELAND COAL COMPANY, INCORPORATED,
Petitioner,
v.
JARRELL D. COCHRAN; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
DEPARTMENT OF LABOR; BENEFITS REVIEW BOARD,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(10-0522-BLA)
Argued: March 22, 2013 Decided: June 4, 2013
Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Petition for review denied by published opinion. Judge Wynn
wrote the majority opinion, in which Judge Motz joined. Chief
Judge Traxler wrote a dissenting opinion.
ARGUED: Thomas Michael Hancock, BOWLES RICE, LLP, Charleston,
West Virginia, for Petitioner. Ryan Christopher Gilligan,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia;
Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents. ON BRIEF: Paul E. Frampton,
BOWLES RICE, LLP, Charleston, West Virginia, for Petitioner.
Joseph E. Wolfe, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton,
Virginia, for Respondent Jarrell D. Cochran. M. Patricia Smith,
Solicitor of Labor, Rae Ellen Frank James, Associate Solicitor,
Gary K. Stearman, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondents.
2
WYNN, Circuit Judge:
Westmoreland Coal Company, Inc. challenges an
Administrative Law Judge’s (“ALJ”) decision, affirmed by the
Benefits Review Board (the “Board”), to award black lung
benefits to Westmoreland’s former employee, Jarrell Cochran.
Because the award of benefits is supported by the record and
accords with applicable law, we must deny Westmoreland’s
petition for review.
I.
The Black Lung Benefits Act (the “Act”), 30 U.S.C. § 901
et seq., entitles former coal miners totally disabled by pneumoconiosis—commonly called black lung disease—to benefits. The Act’s implementing regulations define “pneumoconiosis” as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.”20 C.F.R. § 718.201
(a).
“[P]neumoconiosis can take two forms”: “clinical”
pneumoconiosis and “legal” pneumoconiosis. Harman Min. Co. v.
Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 308
(4th
Cir. 2012). “Clinical” pneumoconiosis “consists of those
diseases recognized by the medical community as pneumoconioses,
i.e., the conditions characterized by permanent deposition of
substantial amounts of particulate matter in the lungs and the
3
fibrotic reaction of the lung tissue to that deposition caused
by dust exposure in coal mine employment.” 20 C.F.R. § 718.201
(a)(1). “Legal” pneumoconiosis is “significantly broader than the medical definition,” Hobbs v. Clinchfield Coal Co.,45 F.3d 819, 821
(4th Cir. 1995), and includes “any chronic lung disease or impairment . . . arising out of coal mine employment . . . includ[ing] . . . any chronic restrictive or obstructive pulmonary disease,”20 C.F.R. § 718.201
(a)(2). For purposes of the Act, “arising out of coal mine employment” means “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.”20 C.F.R. § 718.201
(b).
A claimant under the Act can establish pneumoconiosis with
the aid of a regulatory presumption of pneumoconiosis, id.
§ 718.305(a), or with evidence including x-rays, biopsies, and medical opinions from physicians “exercising sound medical judgment, notwithstanding a negative X-ray,” id. § 718.202. “[T]o determine whether a preponderance of all of the evidence establishes the existence of pneumoconiosis,” ALJs must consider all the relevant evidence together. Island Creek Coal Co. v. Compton,211 F.3d 203, 208
(4th Cir. 2000).
II.
For at least sixteen years between 1964 and 1995, Cochran
worked in West Virginia coal mines, most recently for
4
Westmoreland. At the mines, Cochran had various jobs—above and
below ground—working as a roof bolter, mechanic, shuttle car
operator, general laborer, and truck driver. Cochran also has a
history of smoking, approximately one pack of cigarettes per
week for twenty years.
In February 2008, Cochran filed this claim for black lung
benefits. 1 The Department of Labor awarded benefits, payable by
Westmoreland, and Westmoreland requested a formal hearing before
an ALJ.
In November 2009, the ALJ conducted a hearing on Cochran’s
claim. And in May 2010, the ALJ issued a detailed decision
awarding Cochran benefits. The ALJ found that the evidence
failed to establish that Cochran suffers from clinical
pneumoconiosis but did establish that Cochran suffers from legal
pneumoconiosis. Regarding this legal pneumoconiosis finding,
the ALJ chose to credit Dr. D. L. Rasmussen’s medical opinion
over the opinions of Dr. George L. Zaldivar and Dr. Kirk E.
Hippensteel, explaining that the latter two “primarily
concentrated on explaining why . . . the miner did not suffer
from clinical pneumoconiosis”—which does not preclude legal
pneumoconiosis—and that their conclusions were “inconsistent
1
Cochran previously filed a claim for benefits in 1995;
that claim was denied.
5
with the scientific evidence set forth” in the Preamble of the
Act’s implementing regulations. 2 J.A. 379. Further, the ALJ
found that Cochran is totally disabled as a result of his
pneumoconiosis, and thus awarded Cochran black lung benefits.
Westmoreland appealed to the Board, and in June 2011, the
Board concluded that the ALJ permissibly used the Preamble to
evaluate conflicting medical opinions about the cause of
Cochran’s disability and that substantial evidence supported the
ALJ’s ultimate finding of legal pneumoconiosis. 3 Accordingly,
the Board affirmed the ALJ’s decision and order awarding
benefits. Westmoreland now petitions this Court for review.
III.
In black lung benefits cases, this Court’s “review of the
Board’s order is limited.” Harman, 678 F.3d at 310
(internal quotations omitted). We review “whether substantial evidence”— i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[,]” Consolid. Edison Co. of NY v. NLRB,305 U.S. 197, 229
(1938)—“supports the factual
2
“The preamble . . . sets forth the medical and scientific
premises relied on by the Department” of Labor when it amended
the black lung benefits regulations to revise the definition of
legal pneumoconiosis. Harman, 678 F.3d at 314
.
3
Westmoreland did not appeal the ALJ’s finding that Cochran
suffers from a totally disabling respiratory impairment.
6
findings of the ALJ and whether the legal conclusions of the
[Board] and ALJ are rational and consistent with applicable
law,” Harman, 678 F.3d at 310
(internal quotations omitted). “As long as substantial evidence supports an ALJ’s findings, ‘[w]e must sustain the ALJ’s decision, even if we disagree with it.’”Id.
(quoting Smith v. Chater,99 F.3d 635
, 637–38 (4th Cir. 1996)). We are not at liberty to “substitute our judgment for that of the ALJ” but rather must “defer to the ALJ’s evaluation of the proper weight to accord” the evidence, including “conflicting medical opinions.”Id.
(quotation marks
omitted).
On appeal, Westmoreland argues that: (1) the evidence
derived from Dr. Rasmussen’s testimony was insufficient to
support the ALJ’s finding of legal pneumoconiosis; (2) the ALJ
failed to consider all the relevant evidence by improperly
discounting certain expert opinions; and (3) the ALJ erroneously
interpreted the Preamble to create an irrebuttable presumption
of pneumoconiosis. We address each argument in turn.
IV.
A.
We turn first to Westmoreland’s contention that Dr.
Rasmussen’s testimony was insufficient to support the ALJ’s
finding of legal pneumoconiosis. Specifically, Westmoreland
7
compares Dr. Rasmussen’s testimony here to his testimony in
another black lung case, United States Steel Mining Co., Inc. v.
Director, Office of Workers’ Compensation Programs, 187 F.3d 384
(4th Cir. 1999) (“Jarrell”), in which this Court found that the
evidence in the record was insufficient to support an award of
benefits.
In Jarrell, the ALJ had awarded survivor benefits to a
claimant “relying solely” on Dr. Rasmussen’s testimony that
“[i]t is possible that [the coal miner’s] death could have
occurred as a consequence of his pneumonia superimposed upon his
chronic lung disease, including his occupational pneumoconiosis
and occupationally related emphysema” and “[i]t can be stated
that [the coal miner’s] occupational pneumoconiosis was a
contributing factor to his death.” Id. at 387, 389
(emphasis
added). This Court reversed, holding that the mere possibility
of causation was insufficient to support finding a nexus between
a claimant’s pneumoconiosis and his death.
Here, by contrast, Dr. Rasmussen did not testify that coal
mine dust or cigarette smoke could be the cause of Cochran’s
respiratory impairment. Nor did he testify that he did not know
or could not tell whether coal mine dust contributed to
Cochran’s respiratory impairment. Rather, Dr. Rasmussen
testified that both coal mine dust and cigarette smoke were
causes, affirmatively asserting “Mr. Cochran’s coal mine dust
8
exposure must be considered a significant contributing factor to
his what should be described as overlap syndrome . . . and that
he does have at least legal pneumoconiosis, i.e. COPD/emphysema
caused in significant part by coal mine dust exposure.” J.A.
39.
Dr. Rasmussen stated that the effects of coal mine dust and
cigarette smoke exposure “are independent, but additive[,] with
those smokers or non-smokers who are exposed to the greatest
amount of dust exhibit[ing] the greatest impairment.” J.A. 38.
And as the ALJ correctly explained, the Act does not require
that coal mine dust exposure be the sole cause of a claimant’s
respiratory impairment. See 20 C.F.R. § 718.201
(b) (defining “arising out of coal mine employment” as “significantly related to, or substantially aggravated by, dust exposure in coal mine employment”); see also Consolidation Coal Co. v. Swiger,98 F. App’x 227, 238
(4th Cir. 2004) (affirming award of black lung
benefits in case in which experts “found that [claimants]’s
disability was caused in part by smoking and conceded that it
was difficult to differentiate between the effects caused by
smoking and the effects caused by coal mine dust”).
Given Dr. Rasmussen’s expert opinion, the ALJ’s conclusion
that Cochran’s “COPD/emphysema [is] due in part to coal mine
dust exposure” was supported by substantial evidence. J.A. 379.
9
Thus, the Board did not err in affirming the ALJ’s finding of
legal pneumoconiosis.
B.
Westmoreland also argues that the ALJ erred by improperly
discounting the opinions of Dr. Zaldivar and Dr. Hippensteel in
favor of Dr. Rasmussen’s. Specifically, in deciding to credit
Dr. Rasmussen’s opinion over Dr. Zaldivar’s and Dr.
Hippensteel’s, the ALJ stated that
much of the pertinent dispute between these medical
experts centers on the etiology of the miner’s
emphysema. In this particular regard, the opinions of
Drs. Hippensteel and Zaldivar are inconsistent with
the scientific evidence set forth in the [Act’s]
Preamble . . . Thus, I give their opinions concerning
the etiology of the miner’s emphysema less credit than
Dr. Rasmussen’s.
J.A. 379. Westmoreland contends that the ALJ erred by
misinterpreting the Preamble and discrediting the testimony of
Dr. Zaldivar and Dr. Hippensteel. We disagree.
The Preamble states, in pertinent part, that medical
literature “support[s] the theory that dust-related emphysema
and smoke-induced emphysema occur through similar mechanisms . .
. .” Regulations Implementing the Federal Coal Mine Health and
Safety Act of 1969, 65 Fed. Reg. 79920
, 79943 (Dec. 20, 2000).
In Harman, a recent, very similar black lung case, this Court
made plain that an ALJ may consider the Act’s Preamble in
10
assessing medical expert opinions. Harman, 678 F.3d at 314–15.
We also noted that “the only other circuits to address the
question have upheld an ALJ’s invocation of the same preamble.”
Id.
at 315 (citing Helen Mining Co. v. Dir., O.W.C.P.,650 F.3d 248, 256
(3d Cir. 2011) (noting that “[t]he ALJ gave less weight” to the opinions of an employer’s expert because it was “inconsistent with20 C.F.R. § 718.202
(a)(1)-(4) and with the preamble to the regulations”); and Consolidation Coal Co. v. Dir., O.W.C.P.,521 F.3d 723, 726
(7th Cir. 2008) (describing as
“sensible” the ALJ’s decision to give little weight to the
opinion of employer’s expert because, in part, it conflicted
with the Preamble’s statements on the clinical significance of
coal dust-induced COPD)).
Nevertheless, Westmoreland argues that the ALJ
misinterpreted the Preamble to mean that smoke-induced and coal
mine dust-induced respiratory impairments always are
indistinguishable. According to Westmoreland, Dr. Zaldivar and
Dr. Hippensteel relied on advancements in science and medicine
since the implementation of the Preamble that purportedly
facilitate the differentiation of coal mine dust-induced and
smoke-induced emphysema, which the ALJ supposedly ignored
because of how he interpreted the Preamble. In so arguing,
Westmoreland overstates the ALJ’s reliance on the Preamble.
11
Indeed, the ALJ did not state that he would not consider
Dr. Zaldivar’s and Dr. Hippensteel’s opinions, nor did he
suggest that he was obligated to accept the scientific studies
in the Preamble over any other evidence. Rather, the ALJ
explained that he chose to give Dr. Rasmussen’s opinion more
weight in part because it aligned with the scientific findings
in the Preamble. And neither Dr. Zaldivar nor Dr. Hippensteel
testified as to scientific innovations that archaized or
invalidated the science underlying the Preamble. In fact, only
Dr. Zaldivar cited literature that post-dates the Preamble—none
of which appears to even discuss the effects of coal mine dust
exposure on the lungs.
Moreover, the ALJ did not rely solely on the Preamble for
giving less weight to Dr. Zaldivar’s and Dr. Hippensteel’s
opinions. Rather, the ALJ discredited their opinions also
because both experts “primarily concentrated on explaining why
they believed the miner did not suffer from clinical
pneumoconiosis and why clinical pneumoconiosis was not
responsible for his symptoms or impairment” without addressing
legal pneumoconiosis. J.A. 379. The evidence in the record
bears this out: For example, when Dr. Hippensteel was asked
“why do you think that Mr. Cochran’s problem is asthma as
opposed to legal pneumoconiosis,” he replied “there is no
specific association between coal mine dust exposure and the
12
development or causation of asthma . . . . It has not been
associated with any other findings that would suggest that he
had developed clinical pneumoconiosis . . . .” J.A. 175.
The ALJ agreed with Dr. Hippensteel and Dr. Zaldivar that
Cochran does not suffer from clinical pneumoconiosis. But the
Preamble and regulations make clear that the absence of clinical
pneumoconiosis cannot be used to rule out legal pneumoconiosis.
Here, the ALJ found these experts’ opinions had less probative
value with regard to whether Cochran has legal pneumoconiosis,
the salient diagnosis for awarding benefits here. Thus, the ALJ
provided an alternate basis sufficient to uphold his weighing of
the evidence even if his use of the Preamble were error—although
we conclude that it was not. See Harman, 678 F.3d at 313
(“[E]ven if we were to agree . . . that the ALJ’s invocation of
the preamble in discrediting [an expert’s] opinion was improper
(which we do not), any such error would likely be harmless
because the ALJ provided [] independent reasons . . . for
dismissing [the] opinion.”).
Ultimately, as the ALJ explained, Cochran’s claim reduces
to a case of conflicting medical opinions, i.e., a “battle of
the experts.” It is the role of the ALJ—not the appellate
court—to resolve that battle. E.g., Harman, 678 F.3d at 310
.
The ALJ’s lengthy, detailed order reveals a careful
consideration of the experts’ qualifications, their opinions,
13
and the underlying medical science. The order also explains why
the ALJ chose to give Dr. Rasmussen’s opinion more weight.
Nothing before us indicates that the ALJ “substitute[d] his own
medical opinion” for those of Dr. Zaldivar and Dr. Hippensteel,
Reply Br. at 6l, or otherwise committed reversible error. Nor
may we substitute our own judgment for the ALJ’s and reweigh the
evidence. Accordingly, we conclude that the Board properly
affirmed the ALJ’s finding that Cochran suffers from legal
pneumoconiosis.
C.
Finally, Westmoreland contends that the ALJ erroneously
placed the burden of proof on Westmoreland to rule out coal mine
dust as a cause of Cochran’s respiratory impairment. In
particular, Westmoreland cites to a single sentence in the ALJ’s
order stating that “it is not established that coal dust did not
aggravate [Cochran’s] asthma.” J.A. 379. Westmoreland takes
this sentence out of context.
Indeed, reading the decision and order as a whole, it is
clear that this was not a statement of the ALJ’s view as to the
claimant’s burden or the sufficiency of the evidence. Rather,
this was simply part of the ALJ’s explanation for why he chose
not to credit the opinions of Dr. Hippensteel and Dr. Zaldivar
regarding the cause of Cochran’s condition. Elsewhere in the
14
order, the ALJ clearly stated “[t]he claimant has the burden of
proving the existence of pneumoconiosis[,]” J.A. 372, and
recognized that the claimant bears the “burden of proof in
establishing the existence of ‘legal’ pneumo-coniosis.” J.A.
379. Accordingly, we hold that ALJ properly placed the burden
of proof on Cochran to establish the existence of legal
pneumoconiosis.
V.
In sum, the ALJ’s decision and order to award benefits was
supported by substantial evidence, rational, and consistent with
applicable law. The Board therefore did not err in affirming
the ALJ’s decision and order, and we accordingly deny
Westmoreland’s petition for review.
PETITION FOR REVIEW DENIED
15
TRAXLER, Chief Judge, dissenting:
With respect, I dissent. In my opinion, the ALJ’s decision
to award benefits is not supported by substantial evidence, and
the ALJ erred in shifting the burden to Westmoreland to disprove
pneumoconiosis. I also believe the ALJ erred in discrediting
the opinions of Drs. Zaldivar and Hippensteel based upon the
language in the Preamble.
I.
Highlighting generic findings and general statistics
regarding the physiological effects of coal dust exposure and
cigarette smoking, and based upon a perceived inability to
distinguish between diseases and symptoms caused by them, Dr.
Rasmussen summarily concluded that “Cochran’s coal mine dust
exposure must be considered a significant contributing factor
to” his pulmonary condition. J.A. 39. The conclusion contains
the requisite words, but the underlying basis rests in mere
speculation and possibilities. See J.A. 39 (“While it is
theoretically possible that all of Mr. Cochran’s impairment and
lung damage is the consequence of cigarette smoking, it is also
theoretically possible it is all due to coal mine dust
exposure.”); id.
(Cochran’s condition “could be caused by both asthma and toxic effects of smoking and coal mine dust.”);id.
(“We have no basis for excluding either” as a cause.).
16
Apparently accepting the view that neither theoretical
cause could be ruled out as a contributing one, the ALJ then
compounded the error by imposing upon the employer the burden of
proving that coal dust exposure was not a contributing cause,
finding that:
it [was] not established that coal dust did not
aggravate[] [Cochran’s] asthma. I note, in
particular, Dr. Hippensteel’s admission on cross-
examination that coal dust could aggravate one’s
asthma. Dr. Zaldivar explained that coal mine dust
“can cause physiological changes that are eventually
indistinguishable from emphysema.”
J.A. 379 (emphasis added).
This is not a valid basis for awarding benefits. See
United States Steel Mining Co. v. Dir., OWCP, 187 F.3d 384, 390
(4th Cir. 1999) (“Jarrell”) (rejecting as insufficient a similarly speculative opinion offered by Dr. Rasmussen - that it was “‘possible that death could have occurred as a consequence of [the miner’s] pneumonia superimposed upon ... his occupational pneumoconiosis’ and therefore ‘[i]t c[ould] be stated that [the miner’s] occupational pneumoconiosis was a contributing factor to his death’” (emphasis omitted)); Peabody Coal Co. v. Smith,127 F.3d 504, 507
(6th Cir. 1997) (A “miner’s
pneumoconiosis must be more than merely a speculative cause of
his disability” before an ALJ can award benefits). In the
absence of x-rays, a biopsy, or a valid regulatory presumption,
the burden rests squarely upon the miner to prove by a reasoned
17
medical opinion that his coal mine dust exposure significantly
contributed to or substantially aggravated his chronic
obstructive pulmonary disease. Dr. Rasmussen’s opinion fails to
rise to the requisite standard and the ALJ, in consequence,
improperly shifted the burden to the employer to disprove that
Cochran suffered from legal pneumoconiosis. Accordingly, I
would reverse the award of benefits.
II.
Even if I were to consider Dr. Rasmussen’s opinion as
sufficiently reliable and probative on the issue, I believe the
ALJ additionally erred in discrediting the opinions of Drs.
Hippensteel and Zaldivar based upon the language in the
Preamble.
The Preamble intended to make clear that obstructive lung
diseases (such as chronic obstructive pulmonary disease and
emphysema) can fall within the legal definition of
pneumoconiosis, but only if the claimant can satisfy his burden
of proving that the pulmonary condition was significantly
related to or substantially aggravated by coal dust exposure:
The Department attempts to clarify that not all
obstructive lung disease is pneumoconiosis. It
remains the claimant’s burden of persuasion to
demonstrate that his obstructive lung disease arose
out of his coal mine employment and therefore falls
within the statutory definition of pneumoconiosis.
18
65 Fed. Reg. 79920
-01, 79923; see also65 Fed. Reg. 79920
-01,
79938 (“The revised definition will eliminate the need for
litigation of this issue on a claim-by-claim basis, and render
invalid as inconsistent with the regulations medical opinions
which categorically exclude obstructive lung disorders from
occupationally-related pathologies. The Department reiterates,
however, that the revised definition does not alter the former
regulations’ requirement that each miner bear the burden of
proving that his obstructive lung disease did in fact arise out
of his coal mine employment, and not from another source.”
(emphasis added) (internal citation omitted)).
Consistent with the conclusion that coal dust exposure can
cause obstructive lung disease, the Preamble also notes medical
studies that “support the theory that dust-induced emphysema and
smoke-induced emphysema occur through similar mechanisms.” id. at 79943
(emphasis added). However, while the Preamble
recognizes that the mechanisms by which smoke and coal mine dust
cause lung destruction are similar, it does not state that the
mechanisms or “the signs and symptoms [are] identical”, J.A. 39,
as Dr. Rasmussen opined, J.A. 39, or that the causes of an
obstructive pulmonary disease (smoking and/or coal dust exposure
and/or asthma) cannot be determined or ruled out by a qualified
physician. If that were the case, no physician could ever rule
out any degree of coal dust exposure as a significant
19
contributing cause of an obstructive pulmonary disease, and the
Preamble would effectively become an irrebuttable presumption
that coal dust exposure, if it is proven, must be considered to
have significantly caused or substantially aggravated the
pulmonary condition because no one could rule it out. Taking
the language of the Preamble at face value, it is clear to me
that the opinions of Drs. Zaldivar and Hippensteel are not
inconsistent with the Preamble’s findings.
This case is also distinguishable from Harman, wherein we
upheld the decision of an ALJ discrediting a physician’s opinion
as inconsistent with the Preamble. The physician in that case
“based [his] conclusion, in part, on his opinion that legal
pneumoconiosis ‘cannot’ cause obstructive pulmonary disease.”
Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 311
(4th Cir. 2012) (emphasis added). We also upheld the ALJ’s decision to discredit a second physician’s opinion because he “improperly believed that pneumoconiosis cannot cause disability in the absence of a positive x-ray,” another categorical rejection of the DOL’s conclusions in the Preamble.Id. at 311-12
(emphasis
added) (internal quotation marks omitted). The opinions of Drs.
Zaldivar and Hippensteel, in contrast, are not categorical
rejections of the premise that chronic obstructive pulmonary
disease can be caused or aggravated by coal dust exposure, or
20
that pneumoconiosis cannot exist in the absence of a positive x-
ray finding.
Finally, the ALJ’s conclusion that the opinions of Drs.
Zaldivar and Hippensteel should be discredited because they
focused more on clinical than legal pneumoconiosis also finds no
support in the record. When the evaluations were conducted by
Drs. Zaldivar and Hippensteel, Dr. Rasmussen had diagnosed
clinical pneumoconiosis based upon his positive x-ray reading.
It is not surprising, therefore, that Drs. Zaldivar and
Hippensteel might likewise be focused more on addressing the
diagnosis of clinical pneumoconiosis made by their colleague at
the time. Nevertheless, both physicians addressed the then-
alternative claim of legal pneumoconiosis, exhibited (as the ALJ
acknowledged) a correct understanding of its distinction from
clinical pneumoconiosis, and explained their rationales for
rejecting both forms of pneumoconiosis.
Accordingly, because I believe the ALJ discredited the
opinions of Drs. Zaldivar and Hippensteel on invalid bases, I
would, at a minimum, vacate and remand the case for
reconsideration in light of all of the medical evidence and
pursuant to a proper interpretation of the Preamble.
21