OPINION
Dеnnis Cornett began working as a Kentucky coal miner in 1968. For the next 23-and-a-half years his work required that he crawl for eight hours, lift 35 to 40 pounds hundreds of times and carry 50 pounds a distance of 200 feet more than 100 times each day in the mines. During this period, Cornett also smoked about half-a-pack of cigarettes per day. Cornett developed pulmonary problems — coughing, wheezing, mucous production, shortness of breath, chest pains, etc. — and in early 1992 he sought workers’ compensation. On March 2, 1992, Cornett was exаmined by two doctors in connection with his Kentucky state workers’ compensation claim. Dr. Glen Baker examined Cornett twice— once on March 2 and again on December 21, 1992. During the March examination, Dr. Baker administered a pulmonary function study and evaluated an x-ray of Cornett’s chest. Both times, Dr. Baker diagnosed coal workers’ pneumoconiosis, chronic obstructive airway disease and chronic bronchitis. See J.A. at 69, 95. The second doctor, Dr. Abdi Vaezy, also examined Cornett on March 2, 1992, and he, in additiоn, reviewed the pulmonary function study and an x-ray of Cornett’s chest. Dr. Vaezy diagnosed coal workers’ pneumoconiosis and chronic obstructive pulmonary disease. See id. at 38. Both doctors believed that Cornett’s pneumoco-niosis and obstructive airway disease prevented him from performing the tasks of his usual coal mine employment, see id. at 38, 69, although in his December 1992 report, Dr. Baker referred to Cornett’s impairment as “mild,” id. at 95. Dr. Bak
In October of 1992, Cornett filed an application for benefits under the Black Lung Benefits Act (BLBA), 30 U.S.C. § 901 et seq., with the Department of Labor. On April 9, 1993, a district director within the Department of Labor denied Cornett’s application, and the Director, Office of Workers’ Compensation Programs (the Director), referred Cornett’s claim to the United States Department of Labor, Office of Administrative Law Judges for a formal hearing. An administrative law judge (ALJ) was assigned to adjudicate Cornett’s claim and considered reports by Drs. Vaezy and Baker as well as medical reports from three additional doctors — Dr. Broudy, Dr. Dahhan and Dr. Fino.
Drs. Vaezy and Baker concluded in new reports, which were based on their prior examinations of Cornett, that he was suffering from coal miners’ pneumoconiosis due to his prolonged exposure to coal dust. Both doctors also stated that Cornett was totally disabled, meаning that he was unable to continue the strenuous work in the mines, as a result of his pneumoconiosis. They noted, however, that it was impossible to determine the extent to which Cor-nett’s smoking history contributed to his respiratory problems. See J.A. at 129-32. They were both clear, however, that exposure to coal dust was a “significant factor” in causing Cornett’s moderate respiratory impairment. See id. at 129, 131. The three other doctors disagreed. Dr. Bruce Broudy examined Cornett on April 11, 1997 (having previously examined him on June 22, 1992) and diagnosеd Cornett with chronic bronchitis and hypertension but believed that Cornett did not have coal workers’ pneumoconiosis. See id. at 137-38. He further concluded that Cornett’s chronic bronchitis stemmed solely from Cornett’s many years of cigarette smoking, not from exposure to coal dust. See id. at 138. Dr. A. Dahhan had examined Cor-nett in 1993, and his report stated that there was no evidence of pneumoconiosis or of any pulmonary disabilities that were caused by coal dust exposure. Dr. Dahhan concluded that Cornett suffered from mild chronic bronchitis resulting solely from his smoking history. See id. at 105. Dr. Gregory Fino never personally examined Cornett but rather reviewed prior medical records and tests. He issued a “consultative report” in which he stated that Cor-nett’s condition was not consistent with a coal dust related condition but rather was consistent with smoking. See id. at 125. Drs. Broudy, Dahhan and Fino all concluded that Cornett was neither partially nor totally disabled and was capable of returning to his last mining job or a job requiring similar efforts. See id. at 105, 125, 138.
Evaluating this evidence, the ALJ found that the medical reports of Drs. Baker and Vaezy were of little merit because “[t]hey did not provide support as to why they diagnosed Cornett with pneumoconiosis rather than non-occupational chronic bronchitis.” J.A. at 20. Instead, the ALJ found that “[t]hey based their diagnoses of coal workers’ pneumoconiosis on their interpretations of an x-ray and a history of coal dust exposure.” Id. at 19. Because their evaluations were “merely a restatement of a positive x-ray,” the ALJ determined the reрorts were entitled to “little weight.” Id. at 19-20. On the other hand, the ALJ gave “substantial weight” to the other doctors’ reports and found that Cornett failed to prove the existence of coal workers’ pneumoconiosis. See id. 19-22. In addition, the ALJ found that Cornett failed to prove total disability due to pulmonary problems and on these two grounds denied Cornett’s request for benefits on November 28, 1997. See id. at 23.
Cornett appealed the ALJ’s decision to the Department of Labor Benefits Review Board, and on December 22, 1998, the Board аffirmed the ALJ’s denial of bene
I. Benham Coal’s Motion to Strike
Benham Coal’s motion to strike argues that the Director was without authority to file a pro-petitioner brief in a BLBA cаse. As part of its argument, Benham Coal concedes that under Ingalls Shipbuilding, Inc. v. Director, OWCP,
Although it is true, as Benham Coal argues, that Ingalls was decided under the LHWCA and that BLBA claims are administered in a slightly different fashion by the Department of Labor, these distinctions are of no moment.
But, Benham Coal also argues that, even if the Director generally has the authority to file a pro-petitioner brief, the Supreme Court’s decision in Director, OWCP v. Perini N. River Assocs.,
Finally, Benham Coal argues that because neither Cornett nor the Director raised the issue involving the reports from Drs. Vaezy and Baker before the Board, they are barred from raising it now. With resрect to the Director’s absence below, its absence before the Board does not preclude the Director from participating on appeal. See Goldsmith v. Director, OWCP,
II. Review of Decision
Because Cornett filed his claim for benefits after March 31, 1980, his entitlement to benefits is governed by Part 718 of Title 20 оf the Code of Federal Regulations. See 20 C.F.R. § 718.2; Saginaw Mining Co. v. Ferda,
A. Coal Workers’ Pneumoconiosis
Under the Black Lung Benefits Act, the term “pneumoconiosis” is defined as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b). The regulations further clarify that “[f]or purposes of this definition, a disease ‘arising out of coal mine employment’ includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or substantially aggravаted by, dust exposure in coal mine employment.” 20 C.F.R. § 718.201. This “legal” definition of pneumoconiosis, as other circuits have noted, “encompasses a wider range of afflictions than does the more restrictive medical definition of pneumoconiosis.” Kline v. Director, OWCP,
The BLBA regulations provide a claimant with four different ways of demonstrating that he has “legal” pneumoconiosis. See 20 C.F.R. § 718.202. The ALJ considered each of these four and found that Cornett did not establish that he had pneumoconiosis under any of them. Cornett and the Director only challenge the ALJ’s finding that Cornett did not establish pneumoconiosis under 20 C.F.R. § 718.202(a)(4). That regulation reads, in its entirety, as follows:
A determination of the existence of pneumoconiosis may also be made if a physician, exercising sound medical judgment, notwithstanding a negative X-ray, finds that the miner suffers or suffered from pneumoconiosis as defined in § 718.201. Any such finding shall be based on objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories. Such a finding shall be supported by a reasoned medical opinion.
20 C.F.R. § 718.202(a)(4). In considering Cornett’s proof under this regulation, the ALJ credited as well reasoned the opinions of Drs. Broudy, Dahhan and Fino, all of whom had decided that Cornett did not suffer from pneumoconiosis. The ALJ roundly rejected the contrary opinions of Dr. Vaezy and Dr. Baker, thus concluding that Cornett failed to demonstrate that he had coal workers’ pneumoconiosis under the regulation. But we are troubled by this decision because, in rejecting them as poorly reasoned, the ALJ mischaracterized the opinions of Dr. Vaezy and Dr. Baker in critical respects.
First, the ALJ’s opinion erroneously states that Drs. Vaezy and Baker “based
Further, the ALJ apparently found additional support for discounting the reports of Drs. Vaezy and Baker because “[b]oth physicians admitted that thе obstructive ventilatory defect could have been caused by either smoking or coal dust exposure.” J.A. at 20. Under the circumstances, this can be viewed as tantamount to a finding that both coal dust exposure and smoking were operative factors and that it was impossible to allocate blame between them. However, under the statutory definition of pneumoconiosis, Cornett was not required to demonstrate that coal dust was the only cause of his current respiratory problems. He needed only to show that he has a chronic respiratory and pulmonary impairment “significantly related to, or substantially aggravated by dust exposure in coal mine employment.” 20 C.F.R. § 718.201. It is sufficient that Cornett’s exposure to Coal mine employment contributed “at least in part” to his pneumoconiosis, Southard v. Director, OWCP,
In addition, the evidence indicating that Cornett did not have pneumoconiosis presents shortcomings that the ALJ apparently did not consider. Each of the three doctors unfavorable to Cornett reported that his respiratory problems were caused by his smoking habit only. If this is so, Cornett’s ailments do not qualify as statutory pneumoconiosis. See 20 C.F.R. 718.201. But, of the three, only Dr. Fino attempted to explain his rationale for completely excluding Cornett’s exposure to coal dust as an aggravating factor. Dr. Fino attributed Cornett’s obstructive lung disease solely to cigarette smoking because, in his opinion, the pulmonary function tests were not consistent with “fibrosis as would be expected in simple coal workers’ pneumoconiosis.” J.A. at 125. What the ALJ does not consider in his opinion is that, although “fibrosis” is generally associated with “medical” pneumoconiosis, it is not a required element of the broader concept of “legal” pneumoconiosis. Cf. Hobbs,
In sum, the ALJ’s determination that Drs. Vaezy’s and Baker’s diagnoses were merely “restatements of a positive x-ray” is unsupported by the evidence in the record. Because the ALJ rejected their opinions as being without legal or factual basis, he did not analyze the relations between their opinions and the opinions of the other doctors. Further, the ALJ did not consider whether the three adverse doctors, especially Dr. Fino, were using the more restrictive medical definition of pneumoconiosis when they determined that Cornett did not suffer from that condition. Remand, however, would not be appropriate if the ALJ properly determined that Cornett is not totally disablеd, and we will next address that point.
B. Total Disability
A claimant is considered totally disabled “when pneumoconiosis prevents him or her from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity and over a substantial period of time.” 30 U.S.C. § 902(f)(1)(A). The applicable regulations explain that “a miner shall be considered totally disabled if pneumoconiosis as defined in § 718.201 prevents or prevented the miner ... [f]rom perfоrming his or her usual coal mine work.” 20 C.F.R. § 718.204(b)(1). There are four ways a miner can prove total disability under the regulations, see 20 C.F.R. 718.204(c), and the ALJ mentioned and rejected Cornett’s proof under all four methods. But, as before, Cornett and the Director argue that the ALJ’s determination under only one of the four avenues of proof was in error. The relevant section of the regulations states,
Where total disability cannot be established under paragraphs (c)(1), (c)(2) or (c)(3) of this section, or where pulmonary function tests and/or blood-gas studies are medically contraindicated, total disability may nevertheless be found if a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner’s respiratory or pulmonary condition prevents or prevented the miner from engaging in employment as described in paragraph (b) of this section,
20 C.F.R. § 718.204(c)(4). All five doctors agreed that Cornett suffered from a mild to moderate resрiratory impairment, but only Drs. Vaezy and Baker determined that Cornett was totally disabled. The ALJ gave Dr. Vaezy’s opinion “little weight” because he relied, in part, on a pulmonary function study that “yielded numbers- above the qualified amount.” J.A. at 23. This is clearly an inappropriate reason to reject a physician’s opinion because, as the regulations explicitly provide, a doctor can make a reasoned medical judgment that a miner is totally disabled even “where pulmonary function tests and/or blood-gas studies are medically contraindicated.” 20 C.F.R. § 718.204(c)(4). Under the regulations, Dr. Vaezy was entitled to base a reasonable opinion on non-qualifying test results, see Jonida Trucking, Inc. v. Hunt,
The ALJ rejected Dr. Baker’s opinion because Dr. Baker failed to explain why his “March 2, 1992 and December 21, 1992 opinions [were] contradictory on the issue of total disability.” J.A. at 22. This perceived inconsistency stems from the fact that Dr. Baker’s March evaluation clearly found total disability, see id. at 69, but his December evaluation described the
As with his pneumoconiosis determination, the ALJ’s consideration of the medical evidence of Cornett’s total disability was flawed. He rejected Dr. Vaezy’s opinion for an inappropriate reason, and, although the ALJ had more cause to question Dr. Baker, the ALJ did not completely analyze that doctor’s opinion before casting it off. Thus, because the ALJ failed to consider the evidence completely, a remand is appropriate for further fact finding.
We, of course, do not express an opinion whether Cornett has coal workers’ pneu-moconiosis or is totally disabled. These are not determinations for us to make, but because of the errors committed by the ALJ in considering and weighing the evidence before him, a remand is appropriate for a more complete consideration of the record. For the foregoing reasons, we grant Cornett’s petition for review and Vacate the decision of the Benefits Review Board. This matter is Remanded to the administrative law judge for proceedings not inconsistent with this opinion.
Notes
. Benham Coal's responsibility is not contested. South East Coal Company was the employer with which Cornett spent his last cumulative one-year period of coal mine employment. However, because it has gone bankrupt, South East Coal is not the responsible operator. See 20 C.F.R. § 725.492(a)(4). Looking back through the operator for which Cornett worked, he worked for Benham Coal, Inc. from 1977 to 1985. Thus, Benham Coal is the responsible operator in this action because Cornett had the most recent period of cumulative employment of not less than one year with Benham Coal. See 20 C.F.R. § 725.493(a)(1).
. Benham Coal claims that because the Director is an "adjudicator” under the BLBA but only a "mediator” (without the ability to bind the parties) under the LHWCA, the Director cannot now contradict the position of the district director. See Benham’s Motion to Strike at 10, 11, 16. While it is true that the district director’s decision may "be considered a final adjudication of a claim,” 20 C.F.R. § 725.418, this is only the case if the claimant does not seek review of that decision, see id. Here, however, the district director only made an initial eligibility determination that was entirely superseded by the administrative law judge's decision. The Director can argue against the district director’s decision in litigation, see Hardisty v. Director, OWCP,