*1 PERRY, survivor of Jane Martha Petitioner,
George Perry, COALS,
MYNU INCORPORATED/Ho Director, Mining Company; Office
bet Programs, Compensation
of Workers’ Labor, Department of
United States
Respondents. 05-1651.
Nо. Appeals, Court of States United Joseph Stayton, ARGUED: Leonard Circuit. Fourth Inez, Jeffrey Kentucky, for Petitioner. Argued: 2006. Jan. Goldberg, Depart- United States Steven Solicitor, Nov. Labor, Decided: ment of Office D.C., Di- Respondent for
Washington, rector, Compensation Office of Workers’ Hunter, Christopher Michael Programs. Charleston, P.L.L.C., Kelly, Jackson & Virginia, Respondent for MYNU West Coals, Incorporated/Hobet Mining Compa- Radzely, ny. BRIEF: Howard M. ON Labor, Barber, P. for Solicitor of Christian United De- Appellate Litigation, States Labor, D.C., for partment Washington, Of Director, Office Workers’ Respondent A. Programs. Douglas Comрensation Smoot, P.L.L.C., Kelly, & Jackson Charleston, Virginia, for Respondent West Coals, Incorporated/Hobet Mining MYNU Company. WIDENER, WILLIAMS, and
Before MOTZ, Judges. Circuit granted; order Petition review vacated and remanded with instructions published opinion. Judge WIDENER Judge majority opinion, wrote Judge concurred. MOTZ WILLIAMS dissenting opinion. wrote a OPINION WIDENER, Judge. Circuit George in this case is whether The issue Martha Jane hus- Perry, petitioner *2 361 (Black band, pneumoconiosis together died due to and have come in a con- disease). glomerate mass. Lung The Administrative Law evidence, Judge, rejecting Mrs. CWP, With complicated what happens is Perry’s pneumoconiosis that Mr. was held that individual these fuse micronodules and, therefore, proven complicated together body and the forms an immu- regulation creating and an irre- nologic statute reaction where tissue de- is presumption of causation did not stroyed buttable within conglomerate these Board af- apply. gets Benefits Review masses. One necrosis or destruc- tion, questions liquefaction firmed. Mrs. the ALJ’s of tissue. One loses all structure, for opinions of and it rejecting completely reasons becomes destroyed homogeneous who doctors testified mass of tissuе quite within. And complicated pneumoconiosis that caused this is common complicated CWP. one respondent, death. The federal And sees anthra- of cotic pigment dispersed through- Director the Office Workers’ Com- that’s joins out pensation Programs, Perry, this necrotic tissue. Mrs. mass of go, least far as and so vacation remand [Bjasically the difference between sim- arguing specifically that the doctors’ testi- ple complicated and disease is the ab- mony trigger was sufficient to irrebutt- sence of discrete micronodules in the able of causation codified cоmplicated disease micronodules § 20 C.F.R. 718.304 and 30 U.S.C. together. come 921(c)(3). grant petition We and Mynu Another of experts, Coals’ for an remand award benefits. Naeye, Richard slightly of a different
view. He that pneu- testified I. moconiosis not a of simple fusion nod-
ules,
etiology.
but a different
A.
case,
In either
it is
agreed
the size
and
mass
the extent of
de-
tissue
summary
Our
of the medical evidence
struction are considerations.
leads
This
holding
and the ALJ’s
will benefit from a
Supreme
us to the
description
Court’s
general understanding of the difference
which,
pneumoconiosis,
the two
types
simple
complicated pneumo-
between
and
course,
pneumoconiosis
we follow: “[s]l
coniosis.
generally regarded by physicians
...
explanation
ALJ,
In
adopted by
productive of significant respirato-
seldom
Rosenberg,
David
one of
Coals’
ry impairment” whereas “[cjomplicated
witnesses, summarized the difference as pneumoconiosis, generally far
seri-
more
follows:
ous,
progressive
involves
massive fibrosis
[Sjimple
produces significant
coal workers’
usually
pulmo-
[and]
you
nary
is where
impairment
respiratory
micronodules
and marked
disability,
may
are discrete and
have not come
induce death
[which]
failure,
together into a conglomerate
may
mass. The
cardiac
and
contribute
oth-
micronodules,
Usery
reader,
B
Turner
you
as a
cate-
of death.”
er causes
Co.,
7,
Mining
various micronodules into dif- Elkhorn
gorize
1,
U.S.
“r,”
2882,
categories
“p,” “q”
(citing
ferent
and S.Ct.
was gross “signifi- appearance” “the usual problems. breathing There pital for such necessary. lung cant fibrosis” are oxygen breathing his prob- he received for autopsy report Dr. Mellen’s concluded lems, later, days he a few on but died suffered from death certifiсate identi- January 13. The COPD, lungs, both mild cardiopulmonary renal failure as fies acute death; right lung. diagno- cancer in the cause of and it the immediate his complicated pneumoconiosis rested disease, sis of coronary artery chronic ob- lists as- (COPD), on “marked anthraeosis with advanced pulmonary disease structive scarring upper lobes.” contributing sociated both chronic renal failure viewing as gross This was confirmed causes. microscopic. The nodules were well as C. Dr. his X-rayed. report, Consistent with though not testimony suggested, timely Mrs. filed a claim sur- words, many death Lung Ben- so Black vivоr’s benefits by complicated pneumoconio- was his career above-ground, meaning caused that the specifically diagnosis, sis. More exposed dust he was to would not have Mellen determined that 4-centimeter been coal dust.2 right lung nodule was mixture The ALJ summarized evidence and cancer, pneumoconiosis and and a 6-cen- experts found Coals’ be more lung timeter the left nodule Perper, credible than Dr. though he pneumoconiosis, cated or as he otherwise it, equally” “ranked physicians. “coal various characterized dust fibrosis.” But, Mellen’s conclusions were based apparently owing to Dr. Mellen’s sta- *4 gross viewing of lungs and confirmed tus the autopsy prosector, he treated by microscopic slides. This was the testi- rejected and Dr. on Mellen’s views three mony Perry.1 support Mrs. grounds Mynu to unrelated Coals’ doctors: (1)
Several doctors testified or re- issued that Dr. Mellen’s with re- statements ports contrary to Dr. Mellen’s to the effect to spect the composition of the 4-and 6- that pneumoconiosis did not Mr. cause respect centimeter and nodules with to Perry’s claim death. Since the of error what they size would have on an been X- this case concerns the ALJ’s reasons for (2) ray “equivocal”; were Dr. Mellen’s un- conclusions, Dr. rejecting which familiarity with smoking histo- views, did not rest on these we doctors’ ry; and Dr. Mellen’s to identify failure summarize briefly this evidence. Dr. Ev- pneumoconiosis as a cause of death. Jr., Oesterling, erett and Richard
Naeye opined pneumoconiosis did not Mrs. appealed the Benefits Re- death, contribute to the but decedent’s Board, view which affirmed the denial of that death respectively was attributable grounds benefits the same as did the arteriosclerosis and cancer. Dr. Oester- ALJ. ling moderately found pneumoconi- severe osis but that it did impair determined II.
Mr. Perry’s pulmonary function. Dr.
Naeye opined
crystals
that the silica
in Mr.
findings
We review the
fact
deter
Perry’s lungs
least as
reflected on
—at
they
mine whether
are supported
sub
slides he
reviewed —were
toxic and
evidence,
legal
stantial
and the
conclusions
that there
black pigmenta-
was insufficient
de novo. See
Creek
Co. v.
Island
Coal
diagnosis
tion and
necrosis for a
(4th
203,
211
Compton,
F.3d
207-08
Cir.
pneumoconiosis.
cated
Dr. David Rosen-
2000).
fact-finder,
As
the ALJ must con
berg
Morgan,
and Dr. W.K.C.
both board-
weigh
presented.
sider and
all the evidence
B-readers,
spеcialists
certified
and
at-
See
our decision it causing, and regulations. whether implementing capable Benefits Act’s caused, benefits claimant under either pneumoconiosis actually A death his death a re- died as must that a decedent prove method. 20 C.F.R. the disease. See sult of method, main concern The third our 718.205(a).3 This means §§ & 718.1 here, presumption is the irrebuttable that the dece- must establish the claimant regula- statute causation created had coal workers’ dent 921(c)(3) § 20 tion. 30 See U.S.C. 718.202, Act, § 20 by the C.F.R. defined 718.205(c)(3); § also E. Assoc. see C.F.R. mine em arose from coal that the disease Dir., OWCP, 250, 255 220 F.3d Coal Co. v. 718.203, ployment, C.F.R. (4th Cir.2000) identity (noting n. 1 virtual pneumoconiosis, was due to death Spe- regulation). the statute and between Coal 718.205. See Cedar C.F.R. Shuff v. cifically, pneu- attaches if (4th Cir.1992). Co., moconiosis, *5 observed, physicians As ALJ all the the (a) ... by X-ray chest diagnosed When Perry agreed in case this large opacities more yields one or Per- pneumoconiosis, so Mrs. form of some diameter) (greater than 1 centimeter the proof her of ry satisfied burden A, Category be classified in would The ALJ also existence of the disease. B, sys- of 3 [one or C in classification was Perry’s pneumoconiosis Mr. held that ... [or] tems] by employ- his mine presumptively caused (b) by autop- biopsy or diagnosed When ment, challenged by Mynu finding a not yields in the or sy, lung; lesions massive the Accordingly, first two elements Coals. (c) by means diagnosed [other] When recovery are not at issue. of condition which could would be a of cau- contested is the element What is re- reasonably expected yield be the three By regulation, there are sation. (a) (b) of paragraph sults described or
ways prove it. C.F.R. See diagnosis been made as section had 718.205(c). (1) if § first are “com- two described.... therein medical evidence establishes petent Thus, by § or statute 20 C.F.R. 718.304. min- the cause of the pneumoconiosis was of size—if regulation, opacity sufficient (2) death,” “pneumoconiosis or er’s centimeter; not, X-rayed, if one that is one factor substantially contributing cause or proxy for the tissue “massive”—becomes the to the miner’s death or where leading complicated pneu- mass of characteristic of complications death was cаused Corp., E. Assoc. moconiosis. See Coal 718.205(c)(l § pneumoconiosis.” 20 C.F.R. “statutory (referring at 255 to this as added). 2) (emphasis & These are essen- pneumoconiosis”). complicated of tially ordinary of standards codifications though latter burden proof, the shifts the III. qualifies somewhat apply pre- the if “it Id. ALJ’s failure hastens the miner’s death.” 718.205(c)(5). sumption on the light § of the medical causation basis the testimony wrongly confused between the two forms differences showed, 725.202; show, miner, § Perry was a coal 20 C.F.R. had to Mrs. (3) opera- (1) dependent responsible was a surviving Coals that: she was a tor, 718.1; (2) § Perry, 20 20 C.F.R. 725.491-.495. C.F.R. presumрtion with the other methods of measuring similar nodule 6 cm in the proving pneumo- death due to upper left lung. Mellen contrasts single-sentence re- coniosis. The ALJ’s findings follow-up these observa- jection presumption of the illustrates this portions tion that the lower of the miner’s error: I conceptual “Because find lungs “densely are anthracotic without complicated pneumoconiosis was es- not added.) (Emphasis mass lesions.” These (JA (3) tablished, criterion not met.” is prosector determinations the are rele- 439) presump- Criterion refers the may vant evidence which only lead one to tion of complicated pneumoconiosis. This conclude that pres- massive lesions were repeated opinion same mistake is the upper part ent in the lungs the suffi- Board, finding the itas affirms the ALJ’s (b) trigger cient to presumption the that Mrs. has not established the of 20 C.F.R. 718.304.4 complicated pneumoconiosis. evidence of simply, Put both ALJ and Board course, ALJ, Of decision required plaintiff to otherwise Board, repeated simply wrong. prove that the miner suffered from It necessary premis- does not address the pneumoconiosis. cated And for that rea- statutory es of presumptiоn only but son, they find that the statutory presump- finds that since conclusion was tion not apply. would what Correctly otherwise proven, plaintiff prove premis- needed to were the effective. The Director of Workers’ Com- and, es of the presumption if proven, the pensation caught has this error. He provides statute presump- irrebuttable *6 position takes the that the evidence in this pneumoconiosis. tion of case is sufficient to that prove opacities greater Furthermore, than 1 cm in diameter would have Dr. testimony Mellen’s been X-ray X-rays shown had supports been the presumption irrebuttable un- (a) made so that the in 30 of der 20 C.F.R. the 718.304 on basis 921(c)(3) apply. Also, U.S.C. would we of size of the in nodules found note, contradiction, lungs. without that the pro- miner’s Dr. Mellen testified that Mellen, sector autopsy, Dr. de- the fibrous were masses four and six cen- wide, scribed in both an- lungs, lobe, massive lesions right timeters in the left and statutory other ground application of respectively, they and that therefore would the presumption. Specifically, greater Dr. Mel- have been than one centimeter had autopsy report len’s a of they X-rayed. contains notation been ALJ’s basis for “multiple jet black measuring up rejecting equivo- nodules Dr. testimony to 4 cm” upper part in the of the miner’s cal was Dr. that he Mellen’s statement right lung. Dr. further Mellen describes not percent “one-hundred sure” of his con- rely finding. 4. The type pneumoconiosis, Director does not on this “[Coal worker com- any We glaring type, progressive think such is too to plicated absence massive fi- omit. brosis.]” The use of the word massive diagnosis autop- Dr. Mellen is final anatomical in the obviously sy report entirely pathology taken from and is consis itself includes: "Complicated type pneumo- regulation, and and coal tent statute no worker given to that coniosis: reason believe Dr. Mellen used any Advanced anthracosis with marked Fibrosis the word massive in other its than ordi upper of (progressive nary Congress. both lobes sense We massive as used have so fibrosis).” precise point decided that in E. Assoc. Coal DOWCP, (4th Clinical-Pathological Summary And pro- Co. v. Cir. part: vides in 2000). maintained, context, doctors howev- Mynu Coals’ Read in disagree. elusion. We er, having Per- that Dr. Mellen’s not was at most qualification Dr. Mellen’s history was an offset- ry’s entire medical uncertainty part acknowledgment that testimony seems ting disadvantage. This express diagnosis a medicine. A refusal to in the that reflected ALJ’s statement to be candor, equivo- terms is categorical might not have been opinion Dr. Mellen’s cation, it en- opinion that and we are had he known about the same Dr. Mel- than undermines hances rather unsup- smoking history. This is surmise contrast, the other credibility. len’s Dr. Mellen stated by the record. ported adamancy opponents their doctors’ history enough he medical nearly respects all were incorrect all or Dr. he confirmed Rosen- diagnose, credibility. from detracts testimony by explain- berg’s gold standаrd Dr. was the importantly, Mellen More that, history or a ing between medical size the nod- only to assess the doctor better. More- gross viewing, latter is microscope. gross ules in over, he Dr. testified that had iden- Mellen agreed that Even Coals’ doctors cancer, common tified the which was they gave perspective him additional smokers, that he did not attribute instance, Rosenberg Dr. ac- For lacked. exposure. cancer coal-dust conducting autopsy is knowledged that justifica- note that the ALJ’s We also disease. “gold diagnosing standard” for applied largely to the 4-centimeter tions micro- Mellen testified Indeed, right lobe. the ALJ’s mass slides, created, which he on which scopic the 6-centimeter in the discussion of mass exclusively, and doctors relied other descrip- lobe of one-sentence left consists technical said be excellent were testimony being of Dr. Mellen’s tion encompass too quality, were small comprised masses “could be both of the tissue and therefore cross-section This eoalescent masses.” mischar- smaller So, utility. of limited while were import acterizes the of what Dr. Mellen Naeye sup- the slides claimed that did said, thought *7 which that “I that one testimony which port gross diagnosis, progressive them was a massive fibrosis reject not to Dr. Mellen’s the ALJ did cite the other one was mixture of [PMF] and view, lit- Naeye partial picture, Dr. had cancer,” PMF, lung as and that well Dr. erally figuratively. And while best, left had no cancer.” At lung “the Dr. Naeye accurately” how “wonder[ed] if correct about the even the ALJ were lesions, Mellen measured the he did composition presump- to the relevance of their For opine tion, about measurement. testimony Dr. as to the 6- reasons, testimony rejected Dr. Mellen’s these mass was too sum- centimetеr (had reasons, they marily. of the lesions been For all these Dr. Mel- about the size testimony trigger len’s was sufficient X-rayed) was uncontradicted.5 given rejection opinion at least doctors is for of Dr. Mellen’s Despite the fact that four certain, defendant, was not which not one other than he testified on behalf of the 100% insufficient, we testimony have ex- Mellen's reason is itself them contradicted Dr. lesions, plained. they x-rayed, would The nodules in this case are consid- had been erably x-ray. larger cm in E. appeared on was famil- than 1.7 nodules such He case, Coal, past Assoc. so our statement iar such state of affairs from with given deposition, no to believe that experience. In recited that "We are reason his he x-ray x-rays, produce appearing 1.7 cm would not which on nodules of cases in lesions cm,” cancerous, opacities 250 at thought upon greater au- than 1 previously be applicable topsy lung. reason here. turned out to be black No presumption. entirely objective The refusal to so consid- an scientific standard— discretion, greater i.e. an on an opacity x-ray er the same was an abuse of than one finding x-ray provides is a cause of our principal which evidence centimeter — determining benchmark for sup- that the decision of the Board is not what under (B) prong is a massive lesion and ported by substantial evidence. what (C) prong equivalent is an diagnostic result reached other means.” Id. at IV. (internal omitted). quotation marks reasons, For the foregoing petition case, In x-rays this there were no of Mr. granted, for review is the Benefits Review Perry’s lungs. Instead, the administrative vacated, denying order benefits Board’s (ALJ) judge law opinions considered the Board case is remanded Mellen, Dr. who autopsy prosec- was the entry will of an see to the appropri- tor, five other doctors who reviewed awarding ate order benefits. history medical and micro- AND VACATED REMANDED WITH (made Mellen) scopic slides of Mr. INSTRUCTIONS Perry’s lungs. Dr. Mellen determined autopsy from the that there were lesions in WILLIAMS, Judge, dissenting: Circuit Perry’s lungs up that would show agree majority I that substan- x-ray cm, an as an opacity greater than 1 support evidence tial does not the Benefits although qualified opinion he by saying his Nevertheless, Review Board’s decision. “not a percent he was hundred sure.” reasons, I following disagree (J.A. 78.) Four other doctors—Drs. majority’s in- dеcision to remand with Oesterling, Naeye, Rosenberg, and Mor- entry structions for the Board to see to the gan Perry that Mr. had sim- —concluded order awarding of an benefits. ple, complicated, pneumoconiosis.
Only Perper agreed with Dr. Mellen I. complicated pneumoco- had niosis. (West 921(c)(3) Under 30 U.S.C.A. Supp.2006), evidence, & evaluating there is irrebuttable the ALJ
presumption that a miner was dis- totally opinion “discredit Dr. Mellen’s [ed]” at the complicated pneumoconiosis abled time his death due to Mr. pneumoconiosis, or that death was due because Dr. Mellen did not note Mr. Per- pneumoconiosis, ry’s history if the miner lengthy smоking suffered and because *8 (J.A. 438.) a lung from chronic dust disease of the opinion “equivocal.” his at “(A) x-ray an at lungs gave weight” the miner’s shows “less to Dr. ALJ Per- one opacity greater least than one per’s opinion centim- because it relied on Dr. Mel- (B) diameter; biopsy findings mentioning eter a without the reveals len’s fact (C) lungs; findings “massive lesions” in the or a that not include those did diagnosis Perry’s smoking history explaining other means reveals a result or how (A) (B).” equivalent history or Assoc. of that would knowledge Eastern have af- Director, 439.) OWCP, (J.A. Corp. findings. Coal v. 220 F.3d fected at those Hav- (4th Cir.2000); 250, 255 see ing opinions also 20 C.F.R. discounted thе two doctors’ (2006). § 718.804 “The de- Perry, condition that were favorable to Mrs. the frequently proven scribed these criteria is re- concluded that had “not ALJ she ‘complicated pneumoconio- Perry] complicated ferred to as that had coal [Mr. ” (J.A. “[Bjecause (A) 439.) prong pneumoconiosis.” Id. out sis.’ sets workers’ 368 greater than produce opacities ALJ majority that the it would agree
I the x-ray.” of Dr. an opinion one centimeter diameter on improperly discounted extension, added); and, opinion (emphasis Lester Mellen Id. see also (4th Director, OWCP, 1143, ex- Although Dr. Mellen F.2d 1145 Perpеr. 993 Cir.1993) (“To uncertainty opinion, in his make a determination pressed some to discredit pneumoconiosis], sufficient basis not a [of for a “reasonable completely opinion, necessarily must look at all OWCP nullity a is not rendered opinion medical presented.” (emphasis relevant evidence acknowledges it limits of rea- added)). because All must of the relevant evidence Piney opinions.” Mountain soned medical the exis- be considered because otherwise (4th 753, 763 Mays, 176 F.3d Coal Co. v. complicated pneumoconiosis tence Cir.1999). of Dr. discrediting ALJ’s though “could be found even the evidence troubling particularly opinion weighed against clearly a whole such because, states, majority Dr. Mellen as the Comp finding.” Island Creek Coal Co. v. the size only “was the doctor assess (4th Cir.2000). ton, 203, a micro- gross nodules Nevertheless, vacating than rather him a scope,” gave perspective new, remanding Board’s decision and for a at 356. the other doctors lacked. Ante by the of all the proper consideration ALJ Mel- discounting error of The ALJ’s evidence, majority weighs the evidence a deci- opinion len’s means he reached itself, opinion that Dr. Mellеn’s concludes considering only after part sion of 20 triggers irrebuttable Board’s His decision—and the evidence. 718.304, C.F.R. remands decision in affirmance—is therefore instruction that Ms. be awarded supported by substantial evidence. benefits. Ante at
II.
my good colleagues
In this approach,
placed
power
on a
ignore
limits
court’s
sup-
Because the Board’s decision is not
has
question
Congress
to decide
evidence,
ported by substantial
we should
agency.
entrusted
an administrative
Board’s
and remand
vacate the
decision
See, e.g.,
Chenery
SEC v.
318 U.S.
Corp.,
for the
to consider
with instructions
ALJ
80, 88,
S.Ct.
L.Ed. 626
thе medical
before
properly all
evidence
(“For
affirming
than
purposes no less
making of whether
new determination
orders,
reversing
appellate
its
an
court
complicated pneumoconio-
upon the domain which
cannot
intrude
determining
lung
In
a claim for black
sis.
exclusively
Congress has
entrusted to
benefits, “all relevant
shall be
evidence
It
funda-
agency.”).
administrative
is a
923(b).
considered.” 30 U.S.C.A.
We
tenet
that a
mental
of administrative law
repeatedly
ALJs to heed
instructed
“judicial judgment cannot be made to do
Assoc. Coal
this command.
Eastern
judgment.”
for an administrative
service
Co.,
every
we said that the ALJ “must
generally
Id.
therefore
must “remand
We
prong
case review the evidence under each
*9
921(c)(3)
agency
a case to an
for decision of
§of
for which relevant evidence
in
place primarily
matter
that statutes
presented
to determine whether
Ventura,
agency hands.” INS v. Orlando
220
present.”
cated
12,
353,
16,
154 L.Ed.2d
at
537 U.S.
123 S.Ct.
prong
F.3d
256. Evidence under each
curiam). This
(per
272
rule rests on
“must be
to de-
considered
evaluated
reviewing
“basic
that a
proposition
termine whether the
as a whole
the
evidence
may
that Con-
severity
that
court
not decide matters
indicates a condition
such
omitted));
to an
assigned
agency.”
has
Va. marks
gress
Highlands
W.
Va.W.
Con-
Norton,
Inc.,
Highlands Conservancy, Inc. v.
servancy
“agency bring expertise can its bear matter; can
upon it evaluate the evi-
dence; it can make initial determina- tion; and, so, can, doing through it TRUSTEES, OF BOARD SHEET MET informed analysis, help discussion and AL WORKERS’ NATIONAL PEN later to court determine whether deci its FUND, Plaintiff-Appellee, SION leeway exceeds pro sion the law v. 17, 123 Id. vides.” S.Ct. 353. SERVICES, INCORPORATED, Ventura, BES “every
Just as in
consideration
formerly known as International Vi
classically
ordinary
supports
law’s
Corporation
N.Y.,
sual
Defendant-
requirement
remand
does so here.” Id. at
Appellant.
16,
353;
123 S.Ct.
see also
Gonzales
—
Thomas,
-,
-,
U.S.
126 S.Ct.
No. 05-1634.
1613, 1615,
(2006) (per
ordinary quotation remand rule”