Sea "B" Mining Company v. Shirley Addison

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 14-0019 BLA. [999900163]. [14-2324]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2324

SEA “B” MINING
Solutions,

COMPANY,

c/o

HealthSmart

Casualty

Claims

Petitioner,
v.
SHIRLEY ADDISON, widow of Jerry Addison, deceased; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(14-0019 BLA)

Argued:

December 9, 2015

Decided:

July 29, 2016

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Petition for review granted; order vacated and remanded by
published opinion. Judge Agee wrote the opinion, in which Judge
Niemeyer and Judge Duncan joined.

ARGUED: Timothy Ward Gresham, PENNSTUART, Abingdon, Virginia,
for Petitioner.
Victoria Susannah Herman, WOLFE WILLIAMS &
REYNOLDS, Norton, Virginia, for Respondent Shirley Addison.
ON
BRIEF: Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondent Shirley Addison.

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AGEE, Circuit Judge:
Jerry Addison applied for financial assistance under the
Black

Lung

Benefits

Act,

30

U.S.C.

§§

901-944

(“the

Act”),

claiming that he suffered from coal-dust induced pneumoconiosis
as a result of his prior work as a coal miner.

Over conflicting

medical evidence, an Administrative Law Judge (“ALJ”) found that
Addison was entitled to benefits under the Act because he had
established the existence of clinical and legal pneumoconiosis
that

resulted

in

a

total

respiratory

disability.

Addison’s

former employer, Sea B Mining Co. (“Sea-B”), filed a petition
for review, arguing the ALJ erred in several ways which were not
harmless.

For

the

reasons

described

below,

we

grant

the

petition for review, vacate the order awarding benefits, and
remand for further proceedings. 1

I.
We

begin

with

a

brief

discussion

of

the

statutory

and

regulatory framework, which provides context for the events of
this

case.

procedure

The
designed

Act
to

creates

an

determine

adversarial
whether

administrative

miners

(or

their

surviving dependents) qualify for compensatory benefits because

1

Addison died during the pendency of this case, and his
widow, Shirley Addison, was substituted as the party in
interest.
2

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they suffer from coal dust-related pulmonary injuries, commonly
categorized as pneumoconiosis.
implementing

regulations

See 30 U.S.C. §§ 901-944.

define

pneumoconiosis

as

a

The

“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).
Courts

recognize

and “legal.”

two

forms

of

pneumoconiosis:

“clinical”

See Clinchfield Coal Co. v. Fuller, 180 F.3d 622,

625 (4th Cir. 1999). 2

Clinical pneumoconiosis “consists of those

diseases recognized by the medical community as pneumoconiosis,
i.e., the conditions characterized by permanent deposition of
substantial amounts of particulate matter in the lungs and the
fibrotic reaction of the lung tissue to that deposition caused
by

dust

exposure

718.201(a)(1).

in

coal

mine

employment.”

20

C.F.R.

§

Legal pneumoconiosis, by contrast, “encompasses

a wide variety of conditions . . . whose etiology is not the
inhalation of coal dust, but whose respiratory and pulmonary
symptomatology have nonetheless been made worse by coal dust
exposure.”
define

Clinchfield, 180 F.3d at 625.

legal

impairment
employment.”

pneumoconiosis

and

its

as

sequelae

“any

The regulations thus

chronic

arising

out

lung
of

disease
coal

or

mine

20 C.F.R. § 718.201(a)(2).

2

This opinion omits internal marks, alterations, citations,
emphasis, or footnotes from quotations unless otherwise noted.
3

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To obtain black lung benefits under the Act, a claimant
must prove by a preponderance of the evidence that: “(1) he has
[either kind of] pneumoconiosis; (2) the pneumoconiosis arose
out of his coal mine employment; (3) he has a totally disabling
respiratory or pulmonary condition; and (4) pneumoconiosis is a
contributing
Milburn

cause

Colliery

1998).

The

disabling

to

Co.

his

v.

parties

Hicks,

agreed

respiratory

employment.

The

total

respiratory

138

F.3d

that

Addison

condition

issue

below,

524,

that
and

on

disability.”
529

(4th

suffered

from

prevented
review,

Cir.
a

further

is

whether

Addison’s disability was the result of pneumoconiosis arising
out of his coal mine employment.

The dispute centers around the

exclusion and consideration of certain medical evidence and the
ALJ’s conclusions in evaluating the expert medical opinions.
A claimant may establish the existence of pneumoconiosis
by,

among

evidence.

other

means,

chest

x-rays

See 20 C.F.R. § 718.202(a).

and

medical

opinion

In addition, “[t]he

results of any medically acceptable test or procedure . . . ,
which

tends

to

demonstrate

the

presence

or

absence

of

pneumoconiosis . . . may be submitted in connection with a claim
and

shall

718.107(a).

be

given

appropriate

Although

the

consideration.”

regulations

group

20
the

C.F.R.
forms

§
of

permissible evidence into discrete categories, an ALJ must weigh
all of the evidence together when determining whether the miner
4

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has

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established

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the

presence

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of

pneumoconiosis.

See

Island

Creek Coal Co. v. Compton, 211 F.3d 203, 208-09 (4th Cir. 2000).

II.
A.
Addison worked in the coal industry for approximately 12
years. 3

Prior to abandoning this line of work in 1981 due to a

neck fracture and arthritis, his employment consisted of stints
as a general laborer, scoop operator, and finally foreman with
Sea-B.

As often occurs in these cases, Addison was a cigarette

smoker, and his smoking history far exceeds the length of his
mining career.

Addison began his pack-a-day smoking habit in

1956 and stopped sometime between 2001 and 2012.

The evidence

is clear that Addison suffered from a myriad of ailments during
the latter part of his life that, if not caused by smoking, were
certainly amplified by this activity.
had

a

history

of

arthritis,

Among other things, he

coronary

artery

disease,

hypertension, and diabetes.

3

Addison attested that he worked in the mines for 13 years.
The parties have stipulated, however, that the length of his
coal-mining career was actually 11.7 years.

5

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In March 2011, Addison filed the present claim for living
miner benefits. 4

His case was referred to a claims manager, who

found that Addison was entitled to benefits due to his prior
coal

employment.

Sea-B

disputed

the

award

and

sought

administrative review before an ALJ.
At

the

ensuing

hearing,

Addison

testified

about

his

employment history, explaining that he worked in “very thick
dust” while at the mines.

J.A. 52.

He also testified about his

decade of breathing problems, for which he had been prescribed
oxygen and other pulmonary medications.
testimony,
concerning

the

parties

his

interpretations

introduced

condition,

of

several

Apart from Addison’s

various

including

chest

medical
(1)

x-rays;

(2)

evidence

conflicting

three

CT

scans

which all read negative for pneumoconiosis; (3) the results from
pulmonary function tests and arterial blood gas studies; (4)
hospitalization
medical

and

opinions

treatment

from

records;

three

and

physicians,

(5)
Dr.

conflicting
J.

Randolph

Forehand, Dr. Gregory J. Fino, and Dr. James R. Castle, all of

4

Addison first requested black lung benefits in 2004, but
his claim was denied for failure to show a totally disabling
respiratory impairment.
The instant case is a “subsequent”
claim subject to denial absent proof of a change in the
applicable
condition
of
entitlement
that
was
unfavorably
adjudicated.
20 C.F.R. § 725.309(c).
The ALJ determined that
Addison had demonstrated such a change, in that he had become
totally
disabled,
and
Sea-B
has
not
challenged
this
determination on appeal.
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whom agreed that Addison was totally disabled by a respiratory
impairment but differed as to its cause and type.
Dr.

Forehand,

sponsored

who

performed

examination,

diagnosed

the

Department

Addison

as

of

Labor

having

both

pneumoconiosis and a non-disabling ventilatory impairment caused
by cigarette smoking.

His opinion was based on an arterial

blood gas study showing impaired gas exchange during exercise, a
single 2011
exposure.

chest

x-ray,

and

Addison’s

history

of

coal

dust

Had Addison not worked in the mines, Dr. Forehand

opined, “his arterial blood gas would no doubt be normal and his
chest x-ray clean.”
Dr.

Fino

J.A. 104.

diagnosed

Addison

with

“idiopathic

interstitial

fibrosis” that, although disabling, is “unrelated to coal dust
inhalation.”
cited

the

between

J.A. 154.
“marked

2008

and

As support for this opinion, Dr. Fino

progression”
2011,

as

of

Addison’s

evidenced

progression in the CT scans and x-rays.
that

the

worsening

of

Addison’s

by

lung

condition

the

photographic

J.A. 153.

He explained

illness

“occurred

far

rapidly to be consistent with coal-mine-dust inhalation.”
205.

too
J.A.

Dr. Fino further testified that although coal workers’

pneumoconiosis

can

cause

pulmonary

fibrosis,

evidence did not support such a diagnosis here.

the

medical

“Coal dust

causes nodular fibrosis,” Dr. Fino explained, “[w]hereas this
fibrosis [Addison] has is a diffuse type” which is “completely
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different pathologically and radiographically.”

J.A. 213.

Fino

restrictive

also

noted

that

Addison’s

fibrosis

was

nature, which is not characteristic of pneumoconiosis.

Dr.
in

Finally,

Dr. Fino averred that he was in the best position to assess
Addison’s condition because he had the benefit of reviewing lung
imagery over time, whereas Dr. Forehand had only conducted “a
one-time review of a chest x-ray.”
Dr.

Castle

opining

that

fibrosis.

reached
Addison

a

J.A. 207.

similar

suffered

conclusion

from

as

Dr.

idiopathic

Fino,

pulmonary

After reviewing essentially the same evidence, Dr.

Castle explained that these tests revealed “linear, irregular
type

opacities

which

pneumoconiosis.”

are

not

J.A. 267-68.

typical

of

coal

workers’

Dr. Castle further noted that

idiopathic pulmonary fibrosis is a disease of unknown cause but
is associated with heavy cigarette smoking and not coal dust
exposure.
B.
In

deciding

that

Addison

established

the

existence

of

pneumoconiosis, the ALJ evaluated several items of conflicting
medical evidence.

He first considered the x-ray evidence, which

consisted of three chest images dated January 2009, February
2011, and May 2011.
equipoise

as

to

the

The ALJ found the first two x-rays in
existence

of

pneumoconiosis

because

similarly qualified doctors rendered conflicting interpretations
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for each.
Forehand

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As to the May 2011 x-ray, the ALJ noted that “Dr.
and

Dr.

Miller

interpreted

it

as

positive

for

pneumoconiosis . . . , while Dr. Scott interpreted the same xray as negative for pneumoconiosis.”

J.A. 12. 5

Observing that

Drs. Miller and Scott were both equally qualified “B-readers and
board-certified radiologists,” the ALJ determined that the “May
20,

2011

chest

pneumoconiosis”

x-ray
because

is

overall

Dr.

positive

Miller’s

“supported by Dr. Forehand’s opinion.”

for

positive
Id.

clinical

reading

was

Dr. Forehand is a

certified B-reader but not a radiologist. 6
The ALJ next considered the CT scan evidence and noted such
scans

do

not

fall

within

evidence,

and

consequently

the

category
“must

be

traditional
weighed

x-ray

with

other

acceptable medical evidence under 20 C.F.R. § 718.107.”

J.A.

13-14.

they

of

The ALJ further interpreted the regulations as allowing

“only one reading of ‘other evidence’ such as CT scans.”
14.

Accordingly,

although

Sea-B

had

offered

three

CT

J.A.
scans

5

Drs. Miller and Scott offered testimony regarding
Addison’s chest x-rays but did not submit further opinion
evidence as to his condition.
6

The record also contained a digital x-ray of Addison’s
chest dated October 20, 2011.
While Dr. Fino opined that this
x-ray was negative for pneumoconiosis, the ALJ rejected this
interpretation
as
inconsistent
with
the
“implementing
regulations.”
J.A. 13 (citing 20 C.F.R. §§ 718.102, 718.202).
Consequently, the ALJ did not consider this x-ray evidence in
its analysis. Sea-B has not challenged this ruling on appeal.
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spanning

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2008

to

2012,

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all

with

negative

readings

for

pneumoconiosis, the ALJ determined Sea-B was entitled to admit
only one scan.

Without explanation, the ALJ picked Addison’s

July 2012 CT scan, which showed “no changes consistent with a
coal mine dust associated occupational disease,” as evaluated by
Dr. Fino.

Id.

Because Dr. Fino’s testimony was undisputed, the

ALJ concluded that “the CT scan evidence d[id] not support a
finding of clinical or legal pneumoconiosis.”

Id.

After discounting Addison’s treatment and hospital records
as

non-probative,

the

ALJ

lastly

turned

to

the

conflicting

medical opinions from Drs. Forehand, Fino, and Castle.
accorded

the

most

weight

to

Dr.

Forehand,

The ALJ

finding

his

view

consistent with the Department of Labor’s position that coal
dust exposure and cigarette smoking are additive in producing
significant airway obstruction.

J.A. 20.

On this point, the

ALJ referenced 65 Fed. Reg. 79,940 (Dec. 20, 2000), which notes
that “[c]oal dust exposure is additive with smoking in causing
clinically

significant

bronchitis.”

The

ALJ

airways
further

obstruction

found

Dr.

and

chronic

Forehand’s

supported by unidentified “diagnostic testing.”

opinion

J.A. 20.

The ALJ discredited the opinions of Drs. Fino and Castle
for several reasons.
diagnoses

He found, among other things, that their

overemphasized

the

fact

that

Addison’s

pulmonary

impairment was restrictive in nature, rather than obstructive,
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when

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evaluating

the

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existence

of

pneumoconiosis.

The

regulations, on the other hand, state that legal pneumoconiosis
includes

“any

chronic

disease

arising

718.201(a)(2).
generalities,
J.A. 19.

out

restrictive

of

The
rather

coal

mine

or

obstructive

employment.”

ALJ

also

found

than

focusing

the

on

pulmonary

20

opinions

[Addison’s]

C.F.R.
“based

§
on

condition.”

In the end, the ALJ concluded that the medical opinion

evidence weighed in Addison’s favor.
Specifically

crediting

his

determination

of

the

x-ray

evidence and Dr. Forehand’s report over the remaining record,
the ALJ found that Addison had established the existence of both
clinical

and

legal

pneumoconiosis

by

a

preponderance

of

the

evidence.

After further finding that Addison’s pneumoconiosis

arose

of

out

his

prior

employment

and

was

a

substantially

contributing cause of his disability, the ALJ awarded benefits
under the Act.
C.
Sea-B

filed

an

administrative

appeal

with

the

Benefits

Review Board (“Board”), specifically disputing the ALJ’s finding
that

the

medical

pneumoconiosis. 7

evidence

established

the

existence

of

In a split decision, the Board affirmed.

7

Sea-B also challenged whether the medical evidence was
sufficient to establish disability causation pursuant to 20
C.F.R. § 718.204(c).
Sea-B has not raised this issue in its
(Continued)
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Agreeing with Sea-B, the majority conceded that the ALJ
“erred in considering only one of the three CT scans [Sea-B]
submitted

in

its

affirmative

case.”

J.A.

30.

Ultimately,

however, the majority declined to vacate the award, finding that
Sea-B failed to show this error was harmful.
Sea-B

for

not

proffering

a

“specific

Id.

They faulted

explanation

of

[ALJ’s] error could have made a difference.”

Id.

took

that,

issue

majority’s

with

this

reasoning,

conclusion,
improper

explaining

exclusion

of

how

the

The dissent
“[b]y

evidence

the

would

always be harmless error because it is not possible to determine
with

certainty

its

determination.”
explained,

the

effect

J.A.
ALJ’s

on

the

34.

trier-of

Given

“overall

this

finding

fact’s

error,

of

the

the

ultimate
dissent

existence

pneumoconiosis . . . is tainted” and should be sent back.

of
J.A.

35.
The majority also rejected Sea-B’s arguments against the
ALJ’s method of weighing the medical evidence.
Sea-B’s

contention

conflicting

x-ray

that

the

evidence

by

ALJ

impermissibly

resorting

to

a

In response to
resolved

the

headcount,

the

Board concluded that he “properly considered the weight of the
positive

x-ray

readings

in

light

of

the

readers’

petition, thus waiving further judicial review.
See United
States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).
12

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qualifications.”

J.A.

28.

Pg: 13 of 30

The

Board

further

sustained

the

ALJ’s decision to accord “less weight to [Dr. Fino’s and Dr.
Castle’s] opinions because the[se] physicians were not able to
adequately explain the bases for their conclusions.”
Following

the

Board’s

unfavorable

decision,

filed the instant petition for review.

J.A. 32.
Sea-B

timely

We have jurisdiction

under 33 U.S.C. § 921(c).

III.
Our review of a decision awarding black lung benefits is
“limited.”

Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 310

(4th Cir. 2012).

We evaluate the legal conclusions of the Board

and ALJ de novo but defer to the ALJ’s factual findings if
supported by substantial evidence.

See Hobet Mining, LLC v.

Epling, 783 F.3d 498, 504 (4th Cir. 2015) (“We ask only whether
substantial evidence supports the factual findings of the ALJ
and

whether

the

legal

conclusions

of

the

Board

rational and consistent with applicable law.”).
evidence is more than a mere scintilla.
evidence

as

a

reasonable

support a conclusion.”

mind

might

and

ALJ

are

“Substantial

It means such relevant
accept

as

adequate

to

Consol. Edison Co. of N.Y. v. NLRB, 305

U.S. 197, 229 (1938).
Applying

this

standard,

we

do

not

undertake

to

reweigh

contradictory medical evidence, make credibility determinations,
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or substitute our judgment for that reached below.

Rather, the

duty to resolve conflicts in the evidence rests with the ALJ as
factfinder.

And

when

conflicting

evidence

allows

reasonable

minds to differ as to whether a claimant is disabled or has
pneumoconiosis, the responsibility for that decision falls on
the ALJ.

See Harman Mining Co., 678 F.3d at 310.

That said, our deference to an ALJ’s factual findings is
not

unlimited.

An

ALJ

must

still

conduct

“an

appropriate

analysis of the evidence to support his conclusion.”
Colliery Co., 138 F.3d at 529.

Milburn

As this Court has previously

explained, “[u]nless the [ALJ] has analyzed all evidence and has
sufficiently

explained

the

weight

he

has

given

to

[the]

exhibits, to say that his decision is supported by substantial
evidence
scrutinize

approaches
the

an

record

abdication
as

a

whole

conclusions reached are rational.”

of

the

court’s

to

determine

duty

whether

to
the

Sterling Smokeless Coal Co.

v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

Thus, “[e]ven

if legitimate reasons exist for rejecting [or crediting] certain
evidence, the [ALJ] cannot do so for no reason or for the wrong
reason.”

King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980).

Where an ALJ has incorrectly weighed the evidence or failed to
account for relevant record evidence, deference is not warranted
and remand is frequently required.
Compton, 211 F.3d at 213.
14

See Island Creek Coal Co. v.

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Furthermore, as a condition to appellate review, an ALJ
must “adequately explain why he credited certain evidence and
discredited other evidence.”

Milburn Colliery Co., 138 F.3d at

533; see also Consolidation Coal Co. v. Filer, No. 95-1270, 1996
WL

139196,

at

*5

(4th

Cir.

Mar.

26,

1996)

(“Decisions

on

conflicting evidence . . . must be addressed and explained at
the

administrative

substantial

level

evidence

meaningfully.”).

before

judicial

standard

can

review
be

under

the

accomplished

Although this requirement “is not intended to

be a mandate for administrative verbosity,” a reviewing court
must
it.”

be

able

to

“discern

what

the

ALJ

did

and

why

he

did

Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10

(4th Cir. 1999).
With this standard of review as the backdrop, we turn to
Sea-B’s arguments.

IV.
A.
Sea-B

initially

contends

that

the

ALJ’s

decision

to

consider only one of the three CT scans included in the record
was error requiring reversal of the ALJ’s judgment.

Addison

does not argue in favor of the ALJ’s evidentiary ruling; rather,
like the Board, he contends Sea-B failed to show this error was
prejudicial.
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We agree with the parties and the Board that the ALJ erred:
Sea-B

was

entitled

to

submit,

and

the

ALJ

was

required

to

consider, one reading of each CT scan under 20 C.F.R. § 718.107.
The remaining issue is whether Sea-B is entitled to any relief
for that error.
Sea-B

appears

to

contend

that

this

requires remand without further inquiry.
that

when

an

“[a]ppellate

ALJ

review

fails
is

to

review

error

On brief, Sea-B argued
all

impossible.”

argument sweeps too broadly.

evidentiary

relevant

Opening

Br.

evidence,
21.

This

Administrative adjudications are

subject to the same harmless error rule that generally applies
to civil cases.

Reversal on account of error is not automatic

but requires a showing of prejudice.

See Consolidation Coal Co.

v. Williams, 453 F.3d 609, 621-22 (4th Cir. 2006).
error

rule

applies

to

agency

action

because

if

The harmless
the

agency’s

mistake did not affect the outcome, it would be senseless to
vacate and remand for reconsideration.

The rule of prejudicial

error

courts

further

“impregnable
relative

citadels

roles

substantive

prevents

of

policy.

reviewing

of

technicality”

courts
Shinseki

and
v.

from

and

agencies
Sanders,

becoming

preserves
in

556

the

implementing
U.S.

396,

407

(2009).
The burden to demonstrate prejudicial error is on Sea-B,
the party challenging the agency action.
16

Id. at 409.

However,

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the harmless error rule is “not . . . a particularly onerous
requirement.”

Id. at 410.

As the Supreme Court has explained,

“[o]ften the circumstances of the case will make clear to the
appellate judge that the ruling, if erroneous, was harmful and
nothing

further

prejudice

need

be

ultimately

said.”

requires

Id.

Our

determination

of

application

of

“case-specific

judgment, based upon examination of the record,” not “mandatory
presumptions and rigid rules.”

Id. at 407.

In each case, an

appellate court must consider “the likelihood that the result
would

have

been

different,”

as

well

as

how

the

impact the public perception of such proceedings.

error

might

Id. at 411.

In claiming that the error here was not harmless, Sea-B
relies on our decision in Island Creek Coal Co. v. Compton,
where we held “all relevant evidence is to be considered” in
evaluating a claim for black lung benefits.

211 F.3d at 208.

Selecting this language out of context, Sea-B posits that the
ALJ’s failure to evaluate the full spectrum of CT scan evidence
is per se prejudicial.

We cannot agree.

Sea-B’s proposed per

se rule is contrary to the Supreme Court’s direction not to
determine
rules.”

prejudice
Shinseki,

presumptions,

the

through
556
Court

“mandatory

U.S.

at

presumptions

398.

explained,

The

use

“exhibit[s]

and
of
the

rigid
such
very

characteristics that Congress sought to discourage,” because it
prevents the court “from resting its conclusion on the facts and
17

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circumstances

of

the

Pg: 18 of 30

particular

case.”

Id.

at

408.

Furthermore, Sea-B has not suggested any basis for concluding
that

an

ALJ’s

failure

to

evaluate

every

evidence will always shape the outcome.

piece

of

relevant

For example, we could

hardly find prejudice where the excluded evidence was merely
cumulative

or

concerned

an

uncontested

point.

See

Hall

v.

Arthur, 141 F.3d 844, 850 (8th Cir. 1998) (“The exclusion of
cumulative evidence, of course, is merely harmless error.”).
Although we reject Sea-B’s proposed per se rule, we agree
that

the

ALJ’s

decision

to

evidence was not harmless.

exclude

the

additional

CT

scan

This error affects the determination

of both clinical and legal pneumoconiosis and impacts the ALJ’s
consideration of the other evidence in this case.
The omitted CT scan evidence is unquestionably probative of
the

central

issue

pneumoconiosis.

in

dispute:

Considered

in

whether

Addison

aggregate,

the

suffered
scans

from

show

a

timeline of the progression of Addison’s condition that neither
Dr. Forehand nor the ALJ addressed.

As explained by Dr. Fino,

this progression “occurred far too rapidly to be consistent with
coal-mine-dust inhalation.”

J.A. 205.

While the ALJ was not

bound to accept this conclusion, he was required to consider it
and

explain

Although

the

why
ALJ

he

found

other

acknowledged

18

evidence

that

such

more

persuasive.

evidence

“must

be

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weighed with other acceptable medical evidence,” J.A. 13-14, he
failed to undertake that task.
When

the

acceptable

record

test

particularly

contains

that

where

it

is
is

the

results

probative

of

uncontested,

the

of

consider that evidence in his analysis.

a

medically

pneumoconiosis,
factfinder

must

See Dixie Fuel Co., LLC

v. Dir., OWCP, 700 F.3d 878, 880 (6th Cir. 2012); Shelton v. Old
Ben

Coal

Co.,

933

F.2d

504,

507

(7th

Cir.

1991).

That

obligation went unfulfilled here, as the ALJ failed altogether
to weigh the CT scan evidence against the remaining record in
his decision.

And this error had multiple ramifications.

By

excluding the CT scans, the ALJ was unable to properly weigh the
CT

scan

evidence

as

a

whole,

particularly

as

probative

of

idiopathic pulmonary fibrosis and exclusive of pneumoconiosis.
Further, the CT scans would have contradicted the ALJ’s findings
as

to

the

x-ray

evidence.

Consequently,

the

ALJ

never

considered, much less explained, how the CT scan evidence would
weigh against the x-ray evidence or impact his consideration of
the overall record.

See Milburn Colliery Co., 138 F.3d at 531

(explaining the general rule that an ALJ must “consider all the
relevant evidence presented”).
In a related way, the exclusion of the CT scan evidence
rendered the ALJ’s consideration of the medical opinions of Drs.
Fino

and

Castle

inadequate.

The
19

ALJ

correctly

noted

that

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“[w]hen CT scans are evaluated by qualified experts . . . they
are

important

diagnostic

tools

that

have

resulted

in

major

improvements in the assessment of occupational lung disease.”
J.A. 14.

And the ALJ credited both Drs. Fino and Castle as such

experts.

However, the ALJ never considered the importance of

the CT scan timeline to the opinions of Drs. Fino and Castle.
See J.A. 153, 267-69.

The two doctors tied their progression

diagnosis to extensive support in the medical literature and
other physical tests, none of which the ALJ addressed.

Again,

the ALJ is not required to accept the medical diagnosis that is
shown

by

the

opinions.

CT

scans

and

their

analysis

in

the

medical

But he is required to consider that evidence and

explain the reasons for finding another analysis entitled to
more weight.

See King, 615 F.2d at 1020 (“Even if legitimate

reasons exist for rejecting or discounting certain evidence, the
[ALJ] cannot do so for no reason or for the wrong reason.”).
Thus, by erroneously excluding the CT scan evidence, the ALJ’s
opinion

was

significantly

flawed

on

all

these

fronts

to

the

prejudice of Sea-B.
We have previously recognized that prejudice is a natural
effect of an error of this kind.

See Consolidation Coal Co. v.

Brown, 230 F.3d 1351 (4th Cir. 2000); Island Creek Coal Co. v.
Groves, 246 F. App’x 842, 846 (4th Cir. 2007); see also Eastover
Mining

Co.

v.

Williams,

338

F.3d
20

501,

508

(6th

Cir.

2003)

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(stating where “an ALJ has improperly characterized the evidence
or failed to account [for] relevant record material, deference
is

inappropriate

and

remand

is

required”).

And

here,

that

prejudice is magnified because it is intertwined with the ALJ’s
findings as to the x-ray evidence and the medical opinions, not
just the CT scan evidence.
Given

that

contradictory
excluded

record

evidence

evidence

decision.

the

is

regarding

could

have

otherwise
Addison’s

materially

comprised
diagnosis,

affected

the

of
this

ALJ’s

See, e.g., Carnevale v. Gardner, 393 F.2d 889, 891

(2d Cir. 1968) (“[I]t is clear that in summarizing and sifting
the evidence in this case, the Hearing Examiner totally ignored
a major piece of evidence which might well have influenced his
decision.

We cannot fulfill the duty entrusted to us . . . if

we cannot be sure that he considered some of the more important
evidence presented[.]”).

Rather than assessing and rejecting a

single negative CT scan, the ALJ should have weighed all three
negative CT scans along with the other credited evidence.
The error was not harmless and warrants remand to ensure
the

ALJ

relation
discussed

fully
to
in

considers

the
more

opinions
detail

the
of

entire
Drs.

below,

record,

Fino

both

and

found

particularly
Castle,
that

who,

these

in
as

scans

affected the evaluation of the x-ray evidence and discredited a
diagnosis

of

pneumoconiosis.

See
21

Stout

v.

Comm’r

Soc.

Sec.

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Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (explaining that an
error is harmless only if a court can conclude with confidence
that “no reasonable ALJ, when fully crediting the testimony,
could have reached a different [result]”).
B.
Sea-B

next

argues

that

the

ALJ

erred

by

utilizing

a

headcount of the x-ray readings to conclude Addison suffered
from

pneumoconiosis.

developed

to

permit

Because

the

appellate

record

review

of

is

this

insufficiently
issue,

we

must

vacate and remand for the ALJ to provide an explanation for his
decision.

See Consolidation Coal Co., 1996 WL 139196, at *5

(“Decisions on conflicting evidence . . . must be addressed and
explained
under

the

at

the

administrative

substantial

evidence

level

before

standard

can

judicial
be

review

accomplished

meaningfully.”).
As

noted,

the

ALJ

considered

three

chest

x-rays

dated

January 12, 2009, February 23, 2011, and May 20, 2011, in his
pneumoconiosis analysis.
as

to

the

qualified”

existence
B-reader

He found the first two “in equipoise
of

pneumoconiosis”

radiologists

had

opinions on each image.

See J.A. 12.

2011

the

x-ray,

however,

ALJ

22

rendered

“equally

contradictory

Turning to the May 20,

found

pneumoconiosis and stated the following:

because

it

positive

for

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There were three readings of the most recent
x-ray taken on May 20, 2011.
Dr. Forehand
and Dr. Miller interpreted it as positive
for pneumoconiosis . . . , while Dr. Scott
interpreted the same x-ray as negative for
pneumoconiosis.
Dr. Forehand is a B reader
but not board certified in radiology.
Drs.
Scott and Miller are both dually qualified
as
B-readers
and
board-certified
radiologists. Dr. Miller’s opinion that the
x-ray
is
positive
for
clinical
pneumoconiosis
is
supported
by
Dr.
Forehand’s opinion.
Consequently, I find
that the May 20, 2011, chest x-ray is
overall
positive
for
clinical
pneumoconiosis.
J.A. 12.
Sea-B asserted before the Board that the ALJ did not weigh
this evidence on a valid basis, but instead resolved the issue
by a headcount of expert witnesses.
upheld

the

ALJ’s

conclusion,

The Board disagreed and

stating

that

he

“properly

considered the weight of the positive x-ray readings in light of
the readers’ qualifications.”

J.A. 28.

The record basis the

Board referenced was its statement “that the May 20, 2011 x-ray
evidence

was

positive

for

pneumoconiosis,

as

it

was

read

as

positive by both Dr. Miller and Dr. Forehand, and as negative
only by Dr. Scott.”

J.A. 28.

When engaged in fact finding, administrative agencies may
not base a decision on the numerical superiority of the same
items of evidence.

See Sterling Smokeless Coal Co., 131 F.3d at

441 (“By resolving the conflict of medical opinion solely on the

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the

number

of

Pg: 24 of 30

physicians

supporting

the

respective

parties, the ALJ below committed . . . error[.]”).

In assessing

such

reasons

evidence,

the

ALJ

must

articulate

specific

and

provide support for favoring one medical reading over another.
See Milburn Colliery Co., 138 F.3d at 536; see also Mitchell v.
OWCP, 25 F.3d 500, 508 (7th Cir. 1994) (observing that an ALJ
may

not

substitute

evidence).

his

judgment

for

that

of

the

medical

We have rejected the practice of simply resorting to

a numerical headcount as “hollow” and not consistent with an
ALJ’s duties in making a reasoned decision.

Adkins v. Dir.,

OWCP, 958 F.2d 49, 52 (4th Cir. 1992); see also Mullins Coal
Co., Inc. of Va. v. Dir., OWCP, 484 U.S. 135, 149 n.23 (1987)
(explaining that an ALJ must “weigh the quality, and not just
the quantity, of the evidence”).
We cannot decipher from the ALJ’s sparse explanation how,
or if, he weighed the x-ray readings in light of the readers’
qualifications.
identify

that

To conduct appellate review, we must be able to
the

ALJ

sufficiently

explained

exhibits.”

Sterling

Without

a

more

“has
the

analyzed
weight

Smokeless

specific

record

all

he

Coal
of

has

Co.,
the

evidence
given
131

ALJ’s

F.3d

and
to

has
[the]

at

rationale

439.
for

reaching his decision as to the May 20 x-ray, we are unable to
adequately perform our judicial review function to assure that
the

ALJ’s

decision

is

based

on
24

a

“reasoned

explanation.”

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Adkins, 958 F.2d at 52.
to

say,

but

didn’t

Pg: 25 of 30

We cannot guess at what the ALJ meant

because

“[e]stablished

precedent

dictates

that a court may not guess at what an agency meant to say, but
must instead restrict itself to what the agency actually did
say.”

Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009).

Consequently,
explanation

for

on

his

remand,

decision

the

ALJ

concerning

should
the

May

provide
20

an

x-ray

by

explaining how he weighed the evidence “in light of the readers’
qualifications”

and

whether

his

numerical headcount of experts.

conclusion

was

based

on

a

With a “reasoned explanation”

in the record, the court would then be in a position to conduct
appellate review should that issue arise again.

Adkins, 958

F.2d at 52.
C.
Lastly, we turn to the ALJ’s consideration of the medical
opinion evidence, particularly in view of the disposition of the
issues involving the CT scan and x-ray evidence.

As noted,

three

cause

physicians

submitted

reports

regarding

the

of

Addison’s disability.

Dr. Forehand opined that Addison suffered

from

based

pneumoconiosis

on

a

physical

examination

in

combination with Addison’s prior occupational exposure to coal
dust.

Drs. Fino and Castle, on the other hand, agreed that

Addison’s

respiratory

troubles

25

were

unrelated

to

coal

dust

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exposure.

Filed: 07/29/2016

The

ALJ

sided

Pg: 26 of 30

with

Dr.

Forehand,

finding

his

statutory

authority

to

diagnosis worthy of the greatest weight.
Although
evaluate and

it

is

weigh

within

the

medical

ALJ’s

opinion

evidence,

an

ALJ

may

not

credit or discredit expert testimony “for no reason or for the
wrong reason.”

King, 615 F.2d at 1020; see also Island Creek

Coal Co. v. Compton, 211 F.3d at 211 (“The ALJ must examine the
reasoning

employed

in

a

medical

opinion

in

light

of

the

objective material supporting that opinion, and also must take
into account any contrary test results or diagnoses.”).
absence

of

an

evaluation,

“to

substantial

adequate
say

evidence

explanation

that

his

approaches

supporting

decision
an

is

abdication

In the

the

ALJ’s

supported
of

the

by

court’s

duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.”

Sterling Smokeless Coal

Co., 131 F.3d at 439-40; see also Milburn Colliery Co., 138 F.3d
at

533

(finding

error

where

“the

ALJ

failed

to

adequately

explain why he credited certain evidence and discredited other
evidence”).
The
purported
preamble

ALJ

credited

consistency
to

the

Dr.
with

amended

Forehand’s
the

diagnosis

following

regulations:

“Coal

based

passage
dust

on

its

from

the

exposure

is

additive with smoking in causing clinically significant airways
obstruction and chronic bronchitis.”
26

J.A. 20 (citing 65 Fed.

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Doc: 37

79,940

Filed: 07/29/2016

(Dec.

20,

Pg: 27 of 30

2000)).

It

is

well

settled

that

a

factfinder may consult the Act’s preamble in assessing medical
opinion evidence.
Nevertheless,
because

it

See Harman Mining Co., 678 F.3d at 314-15.

the

has

ALJ

no

erred

in
on

bearing

relying
Dr.

on

this

Forehand’s

passage

here

pneumoconiosis

opinion.
Although Dr. Forehand diagnosed Addison with an obstructive
impairment, he attributed that impairment solely to cigarette
smoking

and

found

it

non-disabling.

See

J.A.

104.

Dr.

Forehand’s diagnosis of legal pneumoconiosis, instead, was based
on an arterial blood gas study showing weakened gas exchange and
the May 2011 x-ray, which he concluded would have been different
had

Addison

never

been

exposed

to

coal

dust.

However,

Dr.

Forehand never says why he reached that conclusion, particularly
since he never found coal dust exposure related to Addison’s
obstructive
opinion

impairment.

contradicts

obstructive

Quite

the

respiratory

the

preamble

impairment

opposite,
text,

was

as

Dr.

Forehand’s

he

found

attributed

entirely

the
to

smoking without any aggravation from coal dust exposure.
Because

this

proffered

explanation

for

elevating

Dr.

Forehand’s diagnosis is not supported, the ALJ must reevaluate
that opinion to determine the proper weight it should be given.
See Island Creek Coal Co. v. Compton, 211 F.3d at 211-12; King,
615

F.2d

at

1020

(“Even

if
27

legitimate

reasons

exist

for

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rejecting or discounting certain evidence, the [ALJ] cannot do
so for no reason or for the wrong reason.”).
As

noted

earlier,

the

ALJ’s

error

as

to

the

CT

scan

evidence (and the uncertainty as to the validity of the ALJ’s
determination on the x-ray evidence) render his consideration of
the opinions of Drs. Fino and Castle infirm.

Their opinions

explain in detail, with extensive test and medical literature
support,

why

they

conclude

Addison

had

idiopathic

fibrosis instead of coal workers’ pneumoconiosis.
basis

for

those

opinions

was

the

pulmonary

A substantial

progressive

timeline

of

Addison’s disease, proven by the chronology of CT scans and xrays, that established idiopathic pulmonary fibrosis.

While the

ALJ was not required to accept their opinions, he could not have
made a reasoned decision evaluating the opinions in view of the
foundational errors regarding the medical evidence.
Finally,
qualifications

we

note

of

these

the

ALJ

physicians

ignored
in

the

reaching

his

respective
decision.

Dr. Forehand is a board-certified pediatrician and allergist,
whereas

Drs.

Fino

and

Castle

are

both

internal medicine and pulmonary disease.

board-certified

in

“A primary method of

evaluating the reliability of an expert’s opinion is of course
his expertise[.]”

Adkins, 958 F.2d at 52.

The ALJ should have

given some reasoned explanation as to why Dr. Fino’s and Dr.

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Castle’s superior qualifications did not carry any weight in his
evaluation.
The

See Milburn Colliery Co., 138 F.3d at 536.

ALJ’s

pneumoconiosis
Forehand’s

finding
relied

opinion

that

Addison

heavily

over

that

on
of

the
Drs.

suffered
weight
Castle

from

given
and

legal
to

Dr.

Fino.

As

explained several ways above, however, the error as to the CT
scan evidence fundamentally affected the ALJ’s capacity to reach
that conclusion.

The ALJ failed to analyze all of the relevant

evidence and give a reasoned explanation for how it was weighed.
Sterling, 131 F.3d at 439-40 (“Unless the [ALJ] has analyzed all
evidence and has sufficiently explained the weight he has given
to [the] exhibits, to say that his decision is supported by
substantial

evidence

approaches

an

abdication

of

the

court’s

duty to scrutinize the record as a whole to determine whether
the

conclusions

reached

are

rational.”).

Consequently,

we

conclude these errors were prejudicial to Sea-B because without
them the likelihood that the result would have been different is
significant.

See

Shinseki,

556

U.S.

at

410

(“Often

the

circumstances of the case will make clear to the appellate judge
that the ruling, if erroneous, was harmful and nothing further
need be said.”).

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V.
For all these reasons, we grant the petition for review,
vacate the Board’s decision, and remand with instructions for
the

Board

to

return

Addison’s

case

to

the

ALJ

for

reconsideration consistent with this opinion.

PETITION FOR REVIEW GRANTED;
ORDER VACATED AND REMANDED

30