*2
COFFEY,
thritis, hypertension and
Before POSNER and
moderate obstruc-
WILL,
Judges,
hip
Circuit
Senior
tive
disease. He also had a total
Judge.*
replacement.
District
pack
ciga-
Helms smoked at least one
COFFEY,
Judge.
Circuit
*3
day
rettes a
from the time he was a teen-
Peabody
Company
Petitioners
Coal
smoke,
ager and continued to
at a reduced
insurer,
Republic
Compa-
Old
Insurance
its
rate,
open
surgery
his
heart
in 1979.
after
ny (collectively “Peabody”), petition for re-
quit smoking
He testified that he
sometime
of the
Review
decision
view
Benefits
surgery
after his 1979 heart
but could not
Department
of the
of Labor. The
Board
exactly
stopped.
remember
when he
Board affirmed the decision of an adminis-
application
Helms filed his initial
for
(ALJ) awarding respon-
judge
trative law
lung
black
benefits with the United States
dent Lessie L. Helms benefits under the
Department
February
of Labor on
Act,
Lung
Black
Benefits
30 U.S.C. 901
§
(several
open
months before his
heart sur-
Act).
(the
seq.
We reverse and remand.
et
gery).
application
by
was denied
18, 1979,
examiner. On December
this
I
counsel,
time with assistance of
(Helms)
Lessie L. Helms
as a
worked
application
filed a second
for benefits. The
coal miner
a total of 24
and was
examiner determined that Helms was enti-
approximately
old when he first
tled to benefits on the basis of the second
applied for benefits under the Act. He
application and the benefits award was af-
began working
Peabody
September
deputy
firmed
commissioner of the
employment
and continued
Compen-
Division of Coal Miners Workers’
company
until his official retirement in
sation,
Department
United States
of Labor.
although
he had not
November
active-
Thereafter, Peabody requested a de novo
worked since November of 1978when he
ly
and,
hearing
AU,
before an
after the hear-
stopped
breathing difficulty.1
because of
ing and
post-hearing
submission of
evi-
history
litany
is a
hospi-
dence,
the ALJ awarded Helms black
talizations,
tests, and
examinations
benefits.
physical problems.
a host of
He
disclose
had a heart attack in 1979
cardiac
The ALJ based his decision on the invoca-
open
surgery
presumption”
heart
in tion of an “interim
of total
catheterization
May
year. Eight years
(black
of the same
before
due to
disease)
open
surgery
arising
heart
and while he was
out of coal mine em-
working,
ployment
Peabody
Helms had an aortic valve
and found
failed to re-
still
implant.
presumption
Since that time he has
the
suffered
one of four
bulb,
irregular
from an
duodenal
arterio-
rebuttal methods delineated in 20 C.F.R.
disease,
727.203(b).2
sclerotic
cardiomegaly,
Peabody appealed
heart
ar-
the AU’s
§
*
Will,
727.203(a).
triggers
presumption
The Honorable Hubert L.
Senior District
A
miner
Illinois,
Judge
“engaged
for the Northern District of
if he was
in coal mine
sitting by designation.
years”
at least ten
and he
five
satisfies one of
727.203(a).
specified
requirements
§in
parties disagree
stopped
whether Helms
triggered,
Once
is rebutted
solely
work
because of shortness of breath or a
if,
after the consideration of “all relevant
heart attack. The ALJ did not decide this factu-
medical evidence"'.
n
al issue but recited the
of Helms and
“(1) The evidence
that the
establishes
individ-
spouse
stopping
reason for
work
is,
fact, doing
ual
his usual coal mine work
breathing difficulty.
was because of
(see
comparable
gainful
or
work
410.412(a)(1)
Title);
of this
or
§
(2)
explanation
operation
2. For a detailed
light
In
of all relevant evidence it is estab-
regulations,
the Act and the
see Mullins Coal Co.
—
Director, OWCP, U.S. -,
lished that the individual is able to do his
v.
108 S.Ct.
comparable
(1987); Peabody
usual coal mine work or
Dr. Howard reviewed the medical
my opinion,
evi
do not support
presence
dence of record and later
physiologic changes
testified at a
that we would
deposition concerning the results of
usually
impairing
his re
see with
pneumoconio-
applied
view. The AU
the standard enun
sis.” He also noted that shortness of
ciated in Blevins III to
symptom
determine whether
breath can be a
of heart disease
Dr.
opinion
expressed
Howard’s
as a
and that Helms’ heart disease was not re
reasonable
certainty.
Deci
lated to his coal mine employment. Impor
sion and
p.
Order
12. In
tantly,
opined
Blevins III the
that Helms would be able
testimony
“stated that
must be
to continue in his
job
last coal mine
‘phrased in terms of a
minor,
reasonable medical
his heart disease
any,
if
certainty’_”
Peabody Coal
breathing difficulty.
Co. Lo
restrictions due to
In
wis,
(7th Cir.1983) (em
708 F.2d
physician’s
Underhill we held
opin
“that a
added).
phasis
rejected
ion,
We have
expressed
stan
in clear and uncontradicted
Id.;
Co.,
dard.
Underhill v.
physical examination,
Coal
terms and based on a
(7th Cir.1982). Instead,
Underhill v. Cir.1982)). (b)(3). Dr. Ho- graph there is no basis AU has read Helms. Thus allowable statements may disregard Dr. Ho ward’s out of context which the AU Id. at analyzed selectively the evidence. a rea opinion because it is ward’s medical Thus, reject ruling of the AU judgment. stated in soned medical As we equivocal Dr. Howard’s Lowis, at Peabody Coal Co. judgment. is not well-reasoned medical of 20 “the AU violated the mandate 727.203(b) that ‘all relevant evi C.F.R. § The AU also determined determining dence shall be considered’ opinions Getty and Dr. Wil- Dr. whether given weight. too old helmus were to be had been rebutted.” opinions stated condition Both Under quoted In case we also that same exposure not related to dust in his coal hill, free at 222: AU is not “[a]n employment. mine The AU almost me expertise that of a his own substitute chanically reasoned that because these qualified ...” 708 F.2d at physician opinions were at three rendered least gas before the blood studies which evoked very lit they had Moreover, questioned unlike the testimo- probative tle value. The AU stated: in Am ny ax Coal opinions with ev- “It is not Howard’s consistent considered that Getty and Dr. as to ery report every Wilhelmus physician’s other because cause of claimant’s condi- physician diagnosed serious heart [Helms] much, any, if applicability have to the except medical opinions, tion. The other gas established these blood Wilhelmus, for those of and Dr. studies.” pro- conclude that Helms disabled every or health
ceed to delineate statement, explana further without by him.7 failed AU, condition suffered The AU by the common tion contravenes *6 reports other physicians’ to cite of the as decision in sense as well our recent Dotson v. finding pre- interim F.2d support to his the (1988). full sumption para- well realize that was rebutted 1983, pulmonary per- reports may studies physician be sum- reviewed function record 1977, 8, Ali, opined as follows: Dr. June marized through in 1979 1980 and Helnls’ formed 23, 1979, February treated Helms pulmonary function was within normal limits pain myocardial infarc- Renn, lumbosacral tion, and acute (tests validity); questioned Dr. were bronchitis, early emphysema and chronic 1983, 25, pulmonary func- November reviewed 13, 1979, ischemia; myocardial Getty, April Dr. 1979, 1980, performed studies in tion diagnosed questionable disease valvular ventilatory function and concluded Helms’ rhythm enlargement, stenosis, sinus and aortic normal (tests questioned to were validi- was normal present and stat- no Asuncion, 12, 1983, through ty); Dr. December entirely impairment ed related to 23, 1984, diagnosis of arterioscle- final October disease; Marty, May noted his Dr. cardiac disease, prosthetic cardiomegaly, rotic heart breath, pulmo- suffered from claimant short block, valve, degree, first AV left ventricu- aortic edema, nary surgery performed valve aortic EKG, possible hypertrophy with lar strain hospitalization; during that Helms his he added osteoarthritis, arthritis, history of his- rheumatic lung is silent had been evaluated for black hypertension, history tory of moderate ob- Combs, evaluation; Dr. to the results of that as September disease, airway pulmonary function structive 26, 1979, noted interstitial chronic airway disease showed moderate obstructive (December lung shown fibronodular densities in both fields arthritis, 1983); hip left arterioscle- X-ray, specific diagnosis in no made disease, hypertension and chronic rotic heart difficulty; breathing Dr. of Helms’ cause 1984); (July obstructive Wilhelmus, 1980, diagnosed arterio- October air- test showed moderate obstructive function artery coronary disease with sclerotic heart disease, lung problem way present "With the disease, along with mild ease and valvular degenerative and his ar- that he has advanced ventilatory defect due chronic obstructive hip as his of the left as well thritis cardiac abuse, study, gas of tobacco normal blood time, condition, totally I believe that at this he pneumoconiosis; Milsaps, no evidence of gainful employment.” unable to disabled and do July through lungs were October 1984); (October Marty, May indi- 1981, August (July April Octo- clear surgery, had heart cardiovascular 1983), cated dyspnea ber noted that mild on exertion condition, “right regarding lungs leg. st. noted possibly more to disease than due chronic disease; Tauter, Rais.” left to cardiac November WILL, Dot- reviewing Judge, did not have the benefit of District Senior son at the time he decided concurring. case. Even so, we held in Dotson that all relevant that, agree I in because the AU did not including medical examinations evidence decision, have, as he should consider preceded opinions Getty of Dr. and Wilhel- triggering test must be considered ground they given mus on the were simply weighed. We cannot ascertain from gas three before Helms’ blood stud- opinion of the AU whether he did or ies, the case must be remanded consid- of Dr. did not consider the eration of all the medical evidence. I write Getty and Dr. Wilhelmus. however, separately, majority because the sufficiently ex- “Unless [AU] strongly emphasizes so the defend- weight given plained the he has to obvi- may ant’s evidence that it be misunder- say ously probative exhibits to that his peremptory stood as a direction to the AU supported decision is substantial evi- to find for the defendant. approaches an abdication of the The statute is clear if that Helms’ undis- duty court’s scrutinize record as puted is “in or in whole
whole to determine whether the conclu- part” a result of his coal mine sions reached are rational.” that, previously as we have said Zeigler Sieberg, Director, OWCP, Wetherill (7th Cir.1988) (concerning trigger (7th Cir.1987), pneumoconiosis ing presumption) interim of the HEW, contributing “a cause” Secretary Arnold v. (4th Cir.1977)). Thus, compensation is entitled to under the Act. the AU also cursory erred in his dismissal medi We do not here decide that it was not. cal evidence from Dr. and Dr. Wilhel We do decide that the AU must make that mus. light determination of all the medical duty weigh It is the of the AU to all the explain light evidence and to his decision in of the evidence. The AU is not free to own experience
substitute his for that of a
qualified physician.8 In this case the AU properly weigh
failed to the reasoned medi- *7 explain cal of Dr. Howard and to HENDERSON, Curtis time, why, passage other than mere Petitioner-Appellant, discounted the medical evidence of Dr. Get- ty Wilhelmus. THIERET, Menard Warden James
Ill Neil F. Harti Center Correctional Attorney of the State gan, General considering The AU erred in not Illinois, Respondents-Appellees. “all relevant medical evidence” in determin ing failed to establish that No. 87-2975. arose in whole or in out Appeals, States Court United employment. of coal mine Circuit. Seventh 727.203(b). Additionally, because the improper AU used standard for medi Argued June opinions, cal we cannot hold that his conclu 5, 1988. Decided Oct. sion was in accordance with law or the 7, 1988. Oct. Amended As Thus, evidence. we reverse the AU’s de Rehearing Rehearing En Banc termination and remand the matter with 10, 1988. Denied Nov. instructions to reconsider all the medical REVERSED AND REMANDED. (1983). e.g., Lowis, Coal v. See,