Elkay Mining Company v. Hazel Smith

Filing

UNPUBLISHED AUTHORED OPINION filed. [999801798-2] Originating case number: 2015-0100 BLA Copies to all parties and the district court/agency. [1000185387].. [16-1450]

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 1 of 15

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1450

ELKAY MINING COMPANY,
Petitioner,
v.
HAZEL C. SMITH, widow of Edward W. Smith; DIRECTOR, OFFICE OF
WORKERS’
COMPENSATION
PROGRAMS,
UNITED
STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board. (2015−0100 BLA)
Argued: September 15, 2017

Decided: November 2, 2017

Before MOTZ, TRAXLER, and KEENAN, Circuit Judges.

Petition for review denied by unpublished opinion. Judge Keenan wrote the opinion, in
which Judge Motz and Judge Traxler joined.

ARGUED: Jeffrey Robert Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for
Petitioner. Leonard Joseph Stayton, Inez, Kentucky; Jennifer Leigh Feldman, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON BRIEF:
William S. Mattingly, JACKSON KELLY PLLC, Lexington, Kentucky, for Petitioner. M.
Patricia Smith, Solicitor of Labor, Maia S. Fisher, Acting Associate Solicitor, Gary K.
Stearman, Counsel for Appellate Litigation, Helen H. Cox, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 2 of 15

Director, Office of Workers’ Compensation Programs.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 3 of 15

BARBARA MILANO KEENAN, Circuit Judge:
Elkay Mining Company petitions for review of a decision awarding black lung
survivorship benefits to Hazel C. Smith (Mrs. Smith), the widow of coal miner Edward W.
Smith (Mr. Smith), under the Black Lung Benefits Act (the Act), 30 U.S.C. §§ 901 through
944. The Administrative Law Judge (ALJ) found that Mrs. Smith was entitled to benefits
because the evidence established an irrebuttable presumption that Mr. Smith died from
complicated pneumoconiosis. The Benefits Review Board affirmed the award of benefits.
Upon our review, we hold that substantial evidence supports the ALJ’s decision and,
accordingly, we deny Elkay’s petition for review.

I.
Mr. Smith worked in coal mines in West Virginia for at least 34 years, retiring in
1993. He worked as an electrician for a variety of coal mining companies, including most
recently for Elkay Mining Company (Elkay). The majority of Smith’s work took place
underground. Mr. Smith also was a regular smoker.
Over the years, Mr. Smith developed serious medical problems, including
pneumoconiosis, a disease known as “black lung,” which is characterized by the presence
of densities and opacities in the lungs. Smith underwent four major hospitalizations in his
later years: (1) in 2006 for an angioplasty; (2) in 2008 because he was vomiting blood; (3)
in March 2009, during which he was diagnosed with probable congestive heart failure; and
(4) from June 22 to July 3, 2009, to evaluate the need for a left leg amputation. During the
latest hospitalization, Mr. Smith’s treatment was complicated by the onset of pulmonary
3

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 4 of 15

edema. 1 The hospital discharged him on July 3, 2009, and he died later that month.
Mr. Smith’s death certificate listed congestive heart failure, hypertension, and
coronary artery disease as the primary causes of death.

The death certificate also

referenced contributory conditions of emphysema and chronic obstructive pulmonary
disease, which at least one medical expert associated with pneumoconiosis. Additionally,
in Mr. Smith’s various medical treatment records, doctors frequently noted a history of
coal workers’ pneumoconiosis, and the admission record for Mr. Smith’s final
hospitalization contained a notation that his medical history was “[v]ery much significant
for . . . coal miner’s pneumoconiosis.”
Mrs. Smith filed an application for survivorship benefits under the Act in January
2011. During the course of this litigation, two radiologists provided conflicting readings
of a digital x-ray of Mr. Smith’s chest taken on June 24, 2009 (the 2009 x-ray), shortly
before Mr. Smith died. Those two readings were the only x-ray readings submitted by the
parties into the record for the express purpose of assessing whether Mr. Smith had
pneumoconiosis.
In the first reading, Dr. Thomas E. Miller concluded that the 2009 x-ray was positive
for “complicated pneumoconiosis.” Complicated pneumoconiosis typically develops after
simple pneumoconiosis, and is characterized by larger lung lesions and more serious

1

Pulmonary edema is the buildup of fluid in the lungs that may cause difficulty
breathing. See “Edema, pulmonary e.,” Dorland’s Illustrated Medical Dictionary (32d ed.
2012).
4

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 5 of 15

respiratory problems. 2 See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976);
Allen R. Prunty & Mark E. Solomons, The Federal Black Lung Program: Its Evolution
and Current Issues, 91 W. Va. L. Rev. 665, 673 n.22 (1989). In his reading of the 2009 xray, Dr. Miller also noted large opacities with a combined size of less than five centimeters,
which were consistent with a finding of complicated pneumoconiosis.
Reaching a contrary conclusion, Dr. William W. Scott, Jr. did not find any
abnormalities consistent with pneumoconiosis in the 2009 x-ray, but noted that there was
evidence suggesting congestive heart failure and pulmonary edema. Dr. Scott further
opined that “[i]n the presence of this much [congestive heart failure,] one could not see
small opacities even if they were present.”
Mr. Smith’s treatment records contained additional x-ray readings. Although some
of those readings did not include any findings relevant to pneumoconiosis, others included
observations consistent with a finding of pneumoconiosis. One record, dated September
22, 2006 (the 2006 reading), contained a notation of markings in the lungs “possibly
related to [Mr. Smith’s] history of coal mining,” and a 1.1 centimeter “nodule” in the left
lung. A second record, dated June 5, 2008 (the 2008 reading), 3 contained an observation
of densities throughout both lungs, and a diagnosis of “[p]robable occupational

2

We refer to the condition giving rise to the irrebuttable presumption as
“complicated pneumoconiosis,” also known as “progressive massive fibrosis,” although
neither the Act nor the regulations include the term “complicated pneumoconiosis.” See
E. Associated Coal Corp. v. Dir., Office of Workers’ Comp. Programs (Scarbro), 220 F.3d
250, 255 (4th Cir. 2000); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976).
3

Because the record is unclear regarding the names of the doctors who provided the
2006 and 2008 readings, we refer to these readings by year.
5

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 6 of 15

pneumoconiosis.” Some additional x-ray readings from 2008 and 2009 contained findings
of opacities and densities consistent with pneumoconiosis, while other x-ray readings
included notations associating the opacities with pulmonary edema or other conditions
unrelated to pneumoconiosis.
In addition to the various x-ray readings, two physicians provided medical opinions
for Elkay evaluating whether Mr. Smith had complicated pneumoconiosis. Dr. James R.
Castle reviewed and summarized certain medical evidence in the record but, notably, did
not consider the 2009 x-ray or the readings of that x-ray by Dr. Miller and Dr. Scott. Dr.
Castle concluded that Mr. Smith “did not have evidence of complicated coal workers’
pneumoconiosis.”
Dr. Stephen G. Basheda also reviewed the medical evidence at Elkay’s request,
again omitting any review of the 2009 x-ray or the related readings by Dr. Miller and Dr.
Scott. Dr. Basheda opined that there were multiple possible explanations for Mr. Smith’s
pulmonary complications, and ultimately concluded that he could “make no comment”
regarding the role of pneumoconiosis in Mr. Smith’s death because “[t]here is no evidence
to validate [this] diagnos[is].”
After a hearing, the ALJ made two findings relevant to our analysis. First, the ALJ
credited Dr. Miller’s reading of the 2009 x-ray as positive for complicated pneumoconiosis
over Dr. Scott’s different view of the same x-ray. The ALJ found that the 2006 and 2008
x-ray readings corroborated Dr. Miller’s findings. The ALJ did not otherwise remark on
the x-ray readings in Mr. Smith’s treatment records that lacked any explicit reference to
pneumoconiosis.
6

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 7 of 15

Second, the ALJ discounted the medical opinions offered by Dr. Castle and Dr.
Basheda that did not find complicated pneumoconiosis. The ALJ gave Dr. Castle’s opinion
“little weight,” because Dr. Castle did not review the 2009 x-ray or the readings of that xray by Dr. Miller and Dr. Scott. The ALJ also discounted Dr. Basheda’s opinion, largely
on the same basis.
The ALJ concluded that Mrs. Smith had presented sufficient evidence, under prong
(c) of 20 C.F.R. § 718.304, to invoke the irrebuttable presumption that Mr. Smith’s death
was due to complicated pneumoconiosis. Consequently, the ALJ concluded that Mrs.
Smith had established that she was entitled to survivorship benefits under 20 C.F.R. §
718.205(a). The Benefits Review Board affirmed the ALJ’s decision, and Elkay filed this
petition for review.

II.
A.
We begin with an overview of the statutory and regulatory scheme governing claims
for survivorship benefits under the Act. In 1969, Congress established the Act to provide
benefits to coal miners totally disabled by pneumoconiosis or to the surviving spouse of a
coal miner who died due to pneumoconiosis. 30 U.S.C. § 901(a); W. Va. CWP Fund v.
Bender, 782 F.3d 129, 133 (4th Cir. 2015). The Act defines pneumoconiosis as “a chronic
dust disease of the lung and its sequelae, including respiratory and pulmonary impairments,

7

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 8 of 15

arising out of coal mine employment.” 4 30 U.S.C. § 902(b); 20 C.F.R. § 718.201.
Pneumoconiosis is classified as either “simple” or “complicated.”

As noted above,

complicated pneumoconiosis usually develops after simple pneumoconiosis and involves
the presence of larger lung lesions and more serious respiratory problems. See Usery, 428
U.S. at 7; Prunty & Solomons, supra, at 673 n.22 (“Complicated pneumoconiosis
(progressive massive fibrosis) . . . usually occurs on a background of simple
pneumoconiosis.”).
Under the Act’s implementing regulations, a surviving spouse of a deceased coal
miner is entitled to benefits if the survivor proves that: (1) the miner had pneumoconiosis;
(2) the pneumoconiosis arose out of coal mine employment; and (3) the miner’s death was
due to pneumoconiosis. 20 C.F.R. § 718.205(a). A claimant can establish both the first
and the third prongs by invoking an irrebuttable statutory presumption of complicated
pneumoconiosis under 20 C.F.R. § 718.304. See Westmoreland Coal Co. v. Cox, 602 F.3d
276, 282 (4th Cir. 2010). To trigger the irrebuttable presumption, a claimant must produce
(a) a chest x-ray showing one or more large opacities in the lungs greater than one
centimeter in diameter, (b) a biopsy or autopsy showing massive lung lesions, or (c) a

4

The regulations define “pneumoconiosis” as including both “clinical”
pneumoconiosis and “statutory” or “legal” pneumoconiosis. 20 C.F.R. § 718.201(a).
Consequently, a miner suffers from pneumoconiosis under the Act if he either has received
a clinical diagnosis of coal workers’ pneumoconiosis or has “any chronic restrictive or
obstructive pulmonary disease arising out of coal mine employment.” Id. § 718.201(a)(2).
8

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 9 of 15

diagnosis by “other means” showing a condition that reasonably would be expected to yield
the results required under (a) or (b). 20 C.F.R. § 718.304; 30 U.S.C. § 921(c)(3). 5
Although an ALJ may make a finding of complicated pneumoconiosis under any of
these three prongs, he must review all the relevant evidence together in rendering a
determination. See 30 U.S.C. § 923(b) (“In determining the validity of claims under this
part, all relevant evidence shall be considered.”). The three diagnostic methods are
intended to identify not three disparate conditions but rather the single underlying condition
of complicated pneumoconiosis. See E. Associated Coal Corp. v. Dir., Office of Workers’
Comp. Programs (Scarbro), 220 F.3d 250, 255 (4th Cir. 2000); Double B Mining, Inc. v.
Blankenship, 177 F.3d 240, 243 (4th Cir. 1999) (noting that ALJ “must perform
equivalency determinations to make certain that regardless of which diagnostic technique
is used, the same underlying condition triggers the irrebuttable presumption”).
Importantly, “[b]ecause prong (A) sets out an entirely objective scientific standard—i.e. an
opacity on an x-ray greater than one centimeter—x-ray evidence provides the benchmark
for determining what under . . . prong (C) is an equivalent diagnostic result reached by
other means.” Scarbro, 220 F.3d at 256 (quotation marks and citation omitted).
Due to an idiosyncrasy of the regulations, until May 19, 2014, a claimant could not
prove the existence of complicated pneumoconiosis under prong (a) using a digital x-ray

5

The implementing regulation provides for the irrebuttable presumption using
language that is substantively equivalent to the statutory language. Compare 20 C.F.R. §
718.304, with 30 U.S.C. § 921(c)(3).
9

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 10 of 15

reading. 6 See 20 C.F.R. § 718.102 (2013) (referring only to x-rays produced on “film”).
Although digital x-ray readings completed before May 19, 2014 cannot establish
complicated pneumoconiosis under prong (a), a claimant still may establish complicated
pneumoconiosis by “other means” under prong (c). 20 C.F.R. § 718.304. Such “other
means” include digital x-rays taken before May 19, 2014, which can establish complicated
pneumoconiosis under prong (c) even when those x-rays do not fulfill the technical
requirements of prong (a). See Scarbro, 220 F.3d at 256 (“[E]ven where some x-ray
evidence . . . would satisfy the requirements of prong (A), if other x-ray evidence is
available . . . then all of the evidence must be considered and evaluated.”); 20 C.F.R. §
718.107 (providing that the results of “any medically acceptable test or procedure reported
by a physician” may be submitted in support of a claim).
B.
In the context of this statutory and regulatory framework, we turn to address Elkay’s
arguments on appeal. First, Elkay contends that the ALJ erred in crediting Dr. Miller’s
reading of the 2009 x-ray over Dr. Scott’s reading. In particular, Elkay argues that the ALJ
relied on an impermissibly selective review of Mr. Smith’s treatment records, and
neglected to consider x-ray readings that were not positive for pneumoconiosis. Second,
Elkay argues that the ALJ erred in discounting Elkay’s two expert medical opinions, and

6

This state of affairs arose because prong (a) requires that x-ray evidence meet the
quality standards for x-rays set forth under 20 C.F.R. § 718.102. Compare 20 C.F.R. §
718.304(a), with 20 C.F.R. § 718.202(a)(1). Formerly, 20 C.F.R. § 718.102 set forth
classification and quality standards only for analog x-rays. See 20 C.F.R. § 718.102
(2013). Beginning May 19, 2014, the new regulation permits claimants to produce chest
x-ray evidence “by either film or digital radiography systems.” 20 C.F.R. § 718.102(b).
10

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 11 of 15

failed to explain sufficiently the bases for his assessment of those opinions. We disagree
with Elkay’s arguments.
We review de novo the legal conclusions of the ALJ and the Board, and we defer to
an ALJ’s decision to award benefits under the Act if the decision is supported by substantial
evidence. Bender, 782 F.3d at 144. “Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Sea “B” Mining Co. v. Addison, 831 F.3d 244, 252 (4th Cir. 2016) (quotation
marks and citation omitted). Factual findings, credibility determinations, and the proper
weighing of medical opinions are the province of the ALJ. Hobet Mining, LLC v. Epling,
783 F.3d 498, 504 (4th Cir. 2015).
An ALJ must account for relevant evidence and set forth reasons for according
particular weight to significant pieces of evidence, “adequately explain[ing] why he
credited certain evidence and discredited other evidence.” Addison, 831 F.3d at 252–53.
However, these principles do not require an ALJ to set forth and explain an exhaustive
ledger of evidence, or to opine on the relative importance of even ambivalent or
inconclusive evidence. See Lane Hollow Coal Co. v. Dir., Office of Workers’ Comp.
Programs, 137 F.3d 799, 803 (4th Cir. 1998) (observing that “[a]n adequate explanation
can be a succinct one” and that ALJs are not burdened with “a duty of long-windedness”);
Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999) (noting that
ALJ’s duty of explanation is not a “mandate for administrative verbosity or pedantry”). An
explanation of the reasoning supporting the ALJ’s conclusions is sufficient. Mingo Logan

11

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 12 of 15

Coal Co. v. Owens, 724 F.3d 550, 557 (4th Cir. 2013) (noting that the appropriate inquiry
is “whether the ALJ has sufficiently explained his rationale in crediting certain evidence”).
i.
We first consider whether the ALJ adequately accounted for his decision to credit
Dr. Miller’s positive reading of the 2009 x-ray over Dr. Scott’s reading. The ALJ found
that Dr. Miller’s reading established the presence of complicated pneumoconiosis by “other
means” under 20 C.F.R. § 718.304(c).

As noted above, Dr. Miller expressly and

unequivocally found the existence of complicated pneumoconiosis. He observed several
large opacities with a combined size of less than five centimeters. In contrast, Dr. Scott
did not find evidence compatible with pneumoconiosis, but found pulmonary congestion
compatible with congestive heart failure and remarked that “[i]n the presence of this much
[congestive heart failure,] one could not see small opacities even if they were present.”
In crediting Dr. Miller’s reading over Dr. Scott’s, the ALJ explained that Dr.
Miller’s reading was “supported by medical treatment records which suggest complicated
pneumoconiosis.” In particular, the ALJ observed that the 2006 reading corroborated Dr.
Miller’s conclusion, because the 2006 reading “note[d] a 1.1 centimeter nodule within the
left upper lobe.” Evidence of a 1.1 centimeter nodule is persuasive because a nodule of
that size exceeds the one centimeter threshold for establishing complicated
pneumoconiosis by chest x-ray under prong (a) of 20 C.F.R. § 718.304. Further, the ALJ
relied on the separate 2008 reading, which found two new “densities” in the chest compared
to the 2006 reading and noted “[p]robable occupational pneumoconiosis.” The ALJ

12

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 13 of 15

remarked that these records were consistent with Dr. Miller’s finding years later of large
opacities in the total amount of almost five centimeters.
The ALJ correctly noted that pneumoconiosis is “progressive and irreversible,”
meaning that simple pneumoconiosis may progress over time to yield the larger opacities
required to show complicated pneumoconiosis.

Indeed, the Act’s implementing

regulations presume that pneumoconiosis is “a latent and progressive disease.” See 20
C.F.R. § 718.201(c).

The 2006 and 2008 readings corroborated the presence of

pneumoconiosis, which Dr. Miller found had become complicated pneumoconiosis by June
24, 2009, the date of the 2009 x-ray. And, as detailed above, the 2006 reading provided
support for a finding of complicated pneumoconiosis three years before the 2009 x-ray,
because of the presence of an opacity measuring more than one centimeter in diameter.
See 20 C.F.R. 718.304(a).
Notably, Dr. Miller’s finding of complicated pneumoconiosis was unequivocal,
while Dr. Scott’s reading was ambivalent and concluded that in the presence of congestive
heart failure, “one could not see small opacities even if they were present.” We hold that
the ALJ’s decision to credit Dr. Miller’s reading over Dr. Scott’s reading was reasonable,
in view of the corroborating treatment records, the progressive nature of pneumoconiosis,
and the ambivalent nature of Dr. Scott’s opinion. Consequently, substantial evidence
supported the ALJ’s determination that Mr. Smith’s condition had progressed to
complicated pneumoconiosis by the time of his death in July 2009.
Our conclusion is not altered by Elkay’s contention that the ALJ failed to give
adequate consideration to the other x-ray readings in Mr. Smith’s treatment records. An
13

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 14 of 15

ALJ is not required to elaborate exhaustively on every element of evidence in the record,
particularly if that evidence is inconclusive. See Lane Hollow, 137 F.3d at 803 (an
“adequate explanation” by an ALJ “can be succinct”). The ALJ explained that he reviewed
Mr. Smith’s treatment records, and discussed some of those records in detail. 7 Further,
while the x-ray readings in Mr. Smith’s treatment records did not include specific findings
of complicated pneumoconiosis, these readings also did not rule out its existence. And, in
fact, many of the x-ray readings included findings of opacities and densities that would
have been consistent with a diagnosis of pneumoconiosis. Thus, we hold that the ALJ did
not fail to elaborate on important, probative evidence and did not err in crediting Dr.
Miller’s reading of the 2009 x-ray over Dr. Scott’s reading.
ii.
We next consider Elkay’s contention that the ALJ erred in discounting the medical
opinions of Dr. Castle and Dr. Basheda. Generally, we defer to an ALJ’s conclusions
regarding the proper weight to be accorded to expert medical opinions. Harman Mining
Co. v. Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th Cir. 2012).
Although a medical opinion need not rely on chest x-ray evidence, see 20 C.F.R.
718.202(a)(4), an ALJ is entitled to accord “little weight” to a physician’s opinion if the
physician did not review chest x-ray evidence that the ALJ found to be probative. See
Harman, 678 F.3d at 312 (noting that ALJ entitled to accord “little weight” to a medical

7

At oral argument, counsel for Elkay appeared to contend that while the ALJ
reviewed the treatment records in his discussion of the facts, he should have elaborated on
those records in the analysis section of his opinion. However, the law does not require an
ALJ to discuss particular evidence at specific points in his opinion.
14

Appeal: 16-1450

Doc: 48

Filed: 11/02/2017

Pg: 15 of 15

opinion that did not review the most recent positive x-ray reading). A medical opinion that
does not consider probative, objective evidence indicating a contrary conclusion may be
viewed as less persuasive. See Island Creek Coal Co. v. Compton, 211 F.3d 203, 212 (4th
Cir. 2000).
In the present case, the ALJ gave “little weight” to Dr. Castle’s opinion because Dr.
Castle did not consider the 2009 x-ray or the readings of that x-ray made by Dr. Miller and
Dr. Scott. Dr. Castle concluded that Mr. Smith “did not have evidence” of complicated
pneumoconiosis, but did not review Dr. Miller’s contrary, unequivocal finding of that
disease. We therefore conclude that the ALJ was entitled to discount Dr. Castle’s opinion
for its failure to review highly probative evidence. See Harman, 678 F.3d at 312. The ALJ
likewise noted that Dr. Basheda did not review the 2009 x-ray, or the readings made by Dr.
Miller and Dr. Scott interpreting that x-ray, and was entitled to accord little weight to Dr.
Basheda’s opinion on that basis. Id.

III.
For these reasons, we conclude that the ALJ’s decision was supported by substantial
evidence. We therefore deny Elkay’s petition for review.

PETITION FOR REVIEW DENIED

15