28 F. 3d 1208 - Copley v. Arch of West Virginia Incorporated

Helen Hart Cox, United States Department of Labor, Washington, DC, for respondent Director;

Sean Patrick Harter, Robinson & McElwee, Charleston, WV, for respondent Arch of West Virginia.

ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor, Barbara J. Johnson, Counsel for Appellate Litigation, United States Department of Labor, Washington, DC, for respondent Director;

Henry C. Bowen, Robinson & McElwee, Charleston, WV, for respondent Arch of West Virginia.

Ben.Rev.Bd.

REVERSED AND REMANDED.

Before WIDENER and LUTTIG, Circuit Judges, and WILSON, United States District Judge for the Western District of Virginia, sitting by designation.

Blaine Copley petitions for review of a decision by the Benefits Review Board ("Board") affirming the denial of his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945 (1986). Because we find that the Administrative Law Judge ("ALJ") and the Board improperly evaluated the x-ray evidence, we vacate the order of the Board and remand for reconsideration consistent with this opinion.

Copley worked in the coal industry for twenty-nine years. His last period of employment was with the appellee, Arch of West Virginia ("Arch"). Copley retired in 1989 and claimed total disability from pneumoconiosis resulting from his work in the coal mines. He applied for black lung benefits on January 30, 1990, and the Department of Labor ultimately denied benefits. After a hearing, the ALJ denied Copley's claim for benefits, finding that Copley failed to establish either total disability or pneumoconiosis. On appeal, the Board affirmed, finding that Copley failed to establish that he had pneumoconiosis.1 This appeal followed.

To establish entitlement to black lung disability benefits, a claimant must prove that he suffers from pneumoconiosis, that the pneumoconiosis arose out of his coal employment, and that he is totally disabled. 20 C.F.R. Secs. 718.202, 718.203, 718.204. Pursuant to section 718.202(a)(1)-(4), pneumoconiosis may be established by any one of four criteria: x-ray evidence, a biopsy, an available presumption in the regulations, or by reasoned medical opinion. The ALJ concluded that Copley had failed to establish pneumoconiosis under any of these applicable criteria. The Board agreed, holding that Copley had failed to establish pneumoconiosis either by x-ray evidence or reasoned medical opinion.2

The ALJ based his decision primarily on sixteen interpretations of two x-rays. The x-ray evidence consisted of two x-rays, one dated February 10, 1990 and the other dated December 19, 1990.3 Ten physicians read the x-ray taken in February 1990. Six physicians, qualified as both B readers and Board Certified Radiologists ("BCRs"),4 found the x-ray negative. Four physicians read the x-ray positive for pneumoconiosis: two qualified B readers and BCRs, one board certified physician, and one B reader. The second x-ray, taken in December 1990, was read a total of six times. Three physicians, one B reader and two qualified as both B readers and BCRs, found the x-ray to be negative. The remaining three physicians, one B reader and two physicians qualified as B readers and BCRs, found the x-ray to be positive for pneumoconiosis.5 The ALJ considered these sixteen readings and concluded that the x-rays did not establish pneumoconiosis. In making that determination, the ALJ stated:

Nine were found to be negative for pneumoconiosis while seven were read as positive. All nine negative readings are by seven of the B readers. Six of the seven positive readings are by three physicians who are so qualified. The naes [sic] have it. (J.A. at 12.) Thus, the ALJ merely counted up the total number of interpretations without distinguishing between the two x-rays. The Board affirmed this evaluation stating that the "negative interpretations of record outweighed the positive interpretations based on the numerical superiority of the negative readings." We find this method of evaluating x-ray evidence to be problematic.

As stated above, the ALJ considered sixteen interpretations of two x-rays. In evaluating the x-rays, he simply counted the total number of negative readings and total number of positive readings and concluded that the x-ray evidence failed to demonstrate pneumoconiosis solely because there were more negative readings. This court has previously expressed its dissatisfaction, however, with resolving conflict through merely "counting heads" and again does so here. See Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th Cir.1992). Moreover, even if a simple "head counting" approach were acceptable, the ALJ's methodology was flawed. Rather than determine whether each x-ray was positive or negative, the ALJ allowed the readings of one x-ray, by virtue of their numerical superiority, to control the question of whether the x-ray evidence established pneumoconiosis. That methodology encourages multiple readings in a quest for numbers and makes x-rays with fewer readings immaterial. It is, therefore, improper. Instead, the ALJ should consider each individual x-ray on its own merit. The conflicting interpretations of one x-ray should be evaluated to determine whether that individual x-ray is negative or positive. Conflicts between x-rays should then be weighed in context to determine whether there is pneumoconiosis.6 If after reconsidering the x-ray evidence, the ALJ determines the x-rays demonstrate the existence of pneumoconiosis, the ALJ must revisit his determination as to total disability. The criteria used by a claimant to establish total disability include qualifying pulmonary function tests and qualifying arterial blood gas tests. 20 C.F.R. Sec. 718.204(c). The ALJ should carefully examine the pulmonary function tests and arterial blood gas studies that he neglected below. Although the ALJ recognized that Copley's arterial blood gas tests were qualifying, he incorrectly stated that Copley's pulmonary function tests were not. Indeed, both tests appear to have qualifying values pursuant to 20 C.F.R. Sec. 718, Appendices B and C.7

Based on the foregoing, the decision of the Board is reversed, and we remand with instructions to reconsider the evidence consistent with this opinion.

REVERSED AND REMANDED.