Eastover Mining Co. v. Dorothy S. Williams

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0261P (6th Cir.)
File Name: 03a0261p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EASTOVER MINING CO.,
Petitioner,
v.
DOROTHY S. WILLIAMS and
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
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No. 01-4064
On Petition for Review from an Order of the Benefits
Review Board, United States Department of Labor.
No. 00-0362 BLA.
Submitted: July 16, 2003
Decided and Filed: July 31, 2003
Before: KEITH, SUHRHEINRICH, and CLAY, Circuit
Judges.
2 Eastover Mining Co. v. Williams et al. No. 01-4064
1W ith respect to his federal black lung benefits, an ALJ found the
existence of pneum oconiosis established because conflicts in the record
among qualified physicians created “true do ubt” that the ALJ resolved in
_________________
COUNSEL
ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus,
GREENBERG & TRAURIG, Washington, D.C., for
Petitioner. Fred M. Busroe, Jr., CARTER & BUSROE,
Harlan, Kentucky, for Respondents.
_________________
OPINION
_________________
CLAY, Circuit Judge. Petitioner Eastover Mining Co.
appeals an order issued by the Benefits Review Board of the
United States Department of Labor, finding Respondent
Dorothy Sue Williams, widow of Decedent Gordon Williams,
entitled to an award of benefits pursuant to the Black Lung
Benefits Act, 30 U.S.C. §§ 901-45. For the reasons set forth
below, we REVERSE the Benefits Review Board.
FACTS
Decedent was born on January 13, 1927 and died on
July 13, 1993. According to his death certificate, Decedent
died from a pulmonary embolism due to Chronic Obstructive
Pulmonary Disease (“COPD”), itself caused by an acute
gastrointestinal bleed. Decedent smoked between one pack
and one-half pack of cigarettes daily for approximately four
decades before quitting in 1986. Decedent worked as a
surface miner for thirty-seven years, retiring in 1983 when the
mine where he worked ceased operations. He applied for and
ultimately received federal black lung benefits, although state
officials denied his claim for occupational disability benefits.1

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No. 01-4064 Eastover Mining Co. v. Williams et al. 3
Decedent’s favor, b ecause pneumoco niosis is a progressive disease, and
because the ALJ concluded that a single doctor’s opinion could not
outweigh a greater number of medical opinions supporting Decedent. The
Supreme Court and other courts, including this one, have subseq uently
discredited the fact-finding methods employed in the 1983 p roceeding.
See, e.g., Dir., OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81
(1994) (rejecting the “true doubt” rule); Nat’l Mining Ass’n v. Dep’t of
Labor, 292 F.3d 849, 863-64 (D.C. Cir. 2002) (rejecting the view that
latent pneumoconiosis is generally progressive based on the Department
of Labor’s co ncessio n that latent pneumoco niosis rarely progresses);
Woo dwa rd v. Dir., OWCP, 991 F.2d 314, 321 (6th Cir. 1993) (rejecting
reliance on numerical superiority as a valid metho d to resolve conflicts in
the record).
2Decedent first saw W oolum in 1979 .
3A “B-reader” has d emo nstrated proficiency in assessing and
classifying x-rays for pneumoconiosis by successfully completing an
examination cond ucted by or o n behalf of the D epartment of He alth and
Human Services. 20 C.F.R. § 718.202(a)(1)(ii)(E). A board-certified
radio logist has received a certification in radiology from either the
American Board o f Radiology or the American Osteopathic Association.
Id. at § 718.202(a)(1)(ii)(C). Four of the six readings performed by fully-
credentialed analysts involved films taken between 1983 and 1985. T he
remaining two fully-credentialed analysts reviewed films from July of
1993, less than two weeks before Decedent died. The one fully-
credentialed reader who found pneumoconiosis reached his conclusion
based on the analysis of an October 18 , 198 3 film, and he later partly
recanted his d iagnosis.
Other readers with less expertise analyzed the x-rays with conflicting
results. Four readers with no formal expertise in radiology whatsoever
saw pneumoc oniosis in films taken in October and November of 1984, as
Decedent’s relevant medical history begins in April of
1982, when Dr. Jerry Woolum diagnosed Decedent with
COPD and acute bronchitis.2 Woolum has board
certifications in general practice and surgery. Decedent saw
many other physicians in connection with his claim for living
worker benefits and these doctors ordered numerous x-rays.
Sixteen different readers analyzed these images, and only one
of the six B-readers board-certified in radiology felt any film
showed pneumoconiosis.3
4 Eastover Mining Co. v. Williams et al. No. 01-4064
did a non-b oard -certified B -reader. A board-certified radiologist (but not
a B-reader) found no pneumoc oniosis based on film from August and
No vember o f 198 3, as did a B -reader lacking bo ard certification.
Although this muddle of different certifications and different films
unde rstandably tends to create confusion, one ma tter is com pletely clear:
only one of the six fully-credentialed readers found pneumoconiosis. He
did so based on a film taken in 1983 and later expressed reservations
about his opinion.
In March of 1983, Dr. A. Dahhan examined Decedent in
connection with his living miner disability claim. Although
Dahhan believed Decedent suffered from a pulmonary or
respiratory impairment, Dahhan thought Decedent’s
continued smoking caused the problem because the pattern of
impairment disclosed in pulmonary function studies, the
absence of x-ray evidence of pneumoconiosis, and the
presence of occasional crepitations on clinical examination
are all indicia of disability induced by smoking, not coal dust.
On October 20, 1984, Dr. Robert Penman examined
Decedent. Although Penman had neither B-reader
certification nor board certification in radiology, Penman
diagnosed Decedent with pneumoconiosis based on
Decedent’s x-rays. Penman concluded that Decedent’s
suffered pulmonary impairment partly from pneumoconiosis
and partly from smoking. Penman could not separate the two
risk factors.
Dr. William Anderson examined Decedent on
November 28, 1984. Anderson found no evidence of
pneumoconiosis in Decedent’s x-rays. Anderson instead
suspected COPD due to smoking. Anderson also diagnosed
hypertensive cardiovascular disease, mixed psychoneurosis
and osteoarthritis.

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No. 01-4064 Eastover Mining Co. v. Williams et al. 5
4Like many of the physicians discussed herein, Dr. Clarke’s first
name does not app ear in the Joint Append ix.
5To assist Deced ent in ob taining living miner disa bility benefits
imme diately prior to his retirement, Woolum wrote on June 8, 1983 that
Decedent suffered from chronic pep tic ulcer d isease with acute
exacerbation, diverticular disease of the colon with periodic
exacerb ations, hypertension contro lled with med ication, and m anic
depression, requiring chronic medication. At a deposition on August 22,
1985, Wo olum declared that Decedent’s x-rays revealed evidence of
pneumo coniosis and that it contributed to his COP D. W oolum offered no
basis for this conclusion during the depo sition or in any of D eced ent’s
med ical records.
Dr. Clarke4 examined Decedent on December 17, 1984. He
diagnosed pneumoconiosis by x-ray as well as severe
restrictive and obstructive lung disease based on pulmonary
function studies. Clarke declared that pneumoconiosis
rendered Decedent totally disabled.
Dr. Ballard Wright examined Decedent on March 30, 1985.
Wright read one of Decedent’s x-rays as positive for
pneumoconiosis and interpreted his pulmonary function
studies as showing severe restrictive and obstructive
impairment, but concluded that smoking caused Decedent’s
poor pulmonary function.
With respect to the Woolum, Decedent’s “treating
physician,” pneumoconiosis is mentioned only briefly in the
“previous history” section of his report.5 Pneumoconiosis
appears in Woolum’s medical record twice more—first, in
December of 1986, when Decedent reported anxiety and
depression related to his pursuit of black lung benefits, and
second, in January of 1987, when Woolum again listed
pneumoconiosis in the “previous history” portion of a medical
report. These are the only references to pneumoconiosis
Woolum recorded.
Over the next eleven years between Decedent’s initial visit
to Woolum and his eventual death, Woolum treated Decedent
6 Eastover Mining Co. v. Williams et al. No. 01-4064
for a cyst, hypertension, a hernia, acute influenza, peripheral
vascular disease, acute bronchitis, pneumonia, a transient
ischemic attack, several episodes of respiratory distress,
carotid artery disease, acute gastrointestinal bleeding, a
urinary tract infection, and acute septicemia. In July of 1990,
Woolum diagnosed end-stage COPD. During Decedent’s
final hospitalization, Woolum reported massive upper
gastrointestinal bleeding, erosive gastritis, and active peptic
ulcer disease. Decedent died despite surgical intervention
intended to stop the bleeding.
The hospital discharge papers included these final
diagnoses: (1) pulmonary embolism; (2) post-inflammatory
pulmonary fibrosis; (3) emphysema; (4) acute upper GI bleed
(ulcer); (5) acute anemia due to severe blood loss; (6) gastritis
with hemorrhage; (7) cor pulmonale; and (8) peripheral
vascular disease. During his treatment of Decedent, Woolum
never conducted regular pulmonary function studies or blood
gas tests, nor did Woolum diagnose pneumoconiosis.
PROCEDURAL HISTORY
Respondent filed for survivor’s benefits on August 2, 1993,
two weeks after Decedent’s death. On January 24, 1994, after
administrative processing by the Department of Labor
(“DOL”), a claims examiner denied Respondent’s claim
because she failed to establish Decedent died from
pneumoconiosis. On May 25, 1994, DOL reversed itself and
found the evidence sufficient. At Petitioner’s request, the
claim proceeded to an Administrative Law Judge (“ALJ”) for
trial.
On May 8, 1995, the ALJ issued a decision and order
denying Respondent’s claim. ALJ Charles P. Rippey
considered a February 24, 1994 report by Woolum that
claimed:
[Decedent’s] pulmonary disease progressed during the
years I cared for him and the last several years of his life

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No. 01-4064 Eastover Mining Co. v. Williams et al. 7
6W oolum hypothesized that, although the pulmonary embolus
directly caused the miner’s death, pneumoconiosis hastened his dem ise
because the miner’s “lack of oxygen [and] his retained carbon dioxide all
played an effect on all parts of his body.” (J.A. at 277.)
he was in respiratory failure . . . most of the time. He
was hospitalized several times requiring ventilatory
support to keep him alive. The terminal event was likely
a pulmonary embolus. Unfortunately, an autopsy was
not granted by the family. I have no problem stating that
this gentleman was disabled secondary to his lung
disease of which pneumoconiosis, in my mind, was
certainly a contributing factor.
(J.A. at 72.) Before trial, however, ALJ Rippey met with both
sides and informed Respondent’s counsel that this letter alone
did not constitute sufficient proof.
At trial, Respondent introduced a new letter from Woolum
dated March 10, 1995. This time, Woolum concluded,
“within a reasonable degree of medical probability,” that
pneumoconiosis “hastened [Decedent’s] death.”6 (Id.)
Although ALJ Rippey gave “extra weight to the opinion of
Dr. Woolum because he was the treating physician,” ALJ
Rippey based his decision to deny benefits on several factors.
First, the March 10, 1995 opinion conflicted with his
February 24, 1994 letter. Second, the March 10, 1995 letter
failed to specify “in what matter the pneumoconiosis hastened
[Decedent’s] death.” (Id.) Judge Rippey asked, rhetorically,
whether “it led to his development of an embolus earlier than
it would otherwise have developed? Did the pneumoconiosis
cause death earlier than would otherwise have occurred once
the embolus developed?” (Id.) Third, ALJ Rippey noted that
the March 10, 1995 letter stated only that Woolum could
conclude with a reasonable degree of medical “probability”
that the pneumoconiosis hastened the death, as opposed to the
usual language, “with a reasonable degree of medical
certainty.” (Id.)
8 Eastover Mining Co. v. Williams et al. No. 01-4064
Finally, ALJ Rippey refused “to ignore the surrounding
circumstances.” (Id.) Judge Rippey “infer[red] that Dr.
Woolum’s March 10, 1995 opinion was given following a
discussion with [Respondent’s] counsel, and that Dr. Woolum
wanted to say all that he could to strengthen [Respondent’s]
case.” (J.A. at 73.)
Petitioner filed a timely appeal to the Benefits Review
Board (“BRB”), which vacated ALJ Rippey’s decision on
April 24, 1996. The BRB rejected ALJ Rippey’s
characterization of Woolum’s second opinion as a shift or
departure from his initial conclusion; rather, the BRB termed
Woolum’s new opinion a “clarification” of his earlier
conclusion. (J.A. at 67.) The Board also refused to find that
the timing of Woolum’s second letter made Woolum’s
statements less reliable. The BRB thus remanded the case to
a new ALJ for further consideration.
The new ALJ, Clement J. Kichuk, gave little weight to
Petitioner’s experts. Instead, holding for Respondent, ALJ
Kichuk argued that:
[i]t is apparent from the voluminous medical reports that
Dr. Woolum had [Decedent] under close and constant
treatment over a period of fourteen years which provided
him with an outstanding opportunity to determine the
exact nature and cause of his patient’s pulmonary and
respiratory impairment with reliance upon repeated tests,
evaluations, and observations of response to proscribed
medicines and therapy.
(J.A. at 61.) This time, Petitioner appealed to the BRB.
Although the BRB initially affirmed ALJ Kichuk, the BRB
remanded the case to ALJ Kichuk following Petitioner’s
motion for reconsideration. Specifically, the BRB found that
ALJ Kichuk based his decision on the “true doubt” test that

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No. 01-4064 Eastover Mining Co. v. Williams et al. 9
7As noted, under the now-discredited “true doubt” test, a claimant
could establish the existence of pneumoco niosis if conflicts in the record
among qualified physicians created “true doubt” about the presence of the
disease.
8Dahhan previously examined Decedent in March o f 198 3, in
connection with his living miner claim. Although Dahhan believed
Decedent suffered from a pulmonary or respiratory impairment, Dahhan
thought Decedent’s continued smoking caused the problem because the
pattern of impairment disclosed in pulmonary function studies, the
absence of x-ray evidence of pneumoconiosis, and the presence of
occasional crepitations on clinical exam ination all indicated disability
induced by smoking, not coal d ust.
the Supreme Court found impermissible in Director, OWCP
v. Greenwich Collieries, 512 U.S. 267, 280-81 (1994).7
On the second remand, Petitioner introduced evidence that
radiologists who examined Decedent’s x-rays found no
evidence of pneumoconiosis. Importantly, Petitioner offered
the analysis of Dr. A. Dahhan, a physician board-certified in
internal medicine and pulmonary medicine who was one of
the many doctors to physically examine Decedent in the early
1980s. Dahhan stated that Decedent died due to an upper GI
bleed, possibly caused by the steroids he took for
bronchospasms.8 After reviewing all x-rays and medical
records, Dahhan concluded:
There is insufficient objective evidence to justify the
diagnosis of coal worker’s pneumoconiosis . . . . [H]is
death was contributed to greatly by his advanced chronic
obstructive lung disease with no evidence that his death
was contributed to or hastened by his exposure to coal
dust or coal worker’s pneumoconiosis.
(J.A. at 280.) Dr. Dale Sargent, board certified in pulmonary
diseases and critical care, rendered an opinion similar to
Dahhan’s. Sargent noted that Decedent’s blood gases showed
severe hypoxemic hypercapnic respiratory failure on a
10 Eastover Mining Co. v. Williams et al. No. 01-4064
chronic basis—a finding suggesting COPD due to smoking,
not pneumoconiosis. According to Sargent:
In my opinion, with a reasonable degree of medical
certainty, [Decedent] had severe chronic obstructive
pulmonary disease secondary to cigarette smoking. This
is the diagnosis put forth by Dr. Woolum. In fact, coal
worker’s pneumoconiosis is not mentioned in Dr.
Woolum’s diagnostic impressions either at the time of
admission or time of discharge. Chronic obstructive
pulmonary disease and pulmonary emphysema can cause
severe lung disease without characteristic chest x-ray
changes of pneumoconiosis. Therefore, I believe the
cause of this miner’s respiratory impairment was
pulmonary emphysema due to cigarette smoking, and not
due to coal worker’s pneumoconiosis.
(J.A. at 284.) Sargent also stressed that even assuming
Decedent had pneumoconiosis, it did not cause his death.
Sargent wrote:
Very clearly, this man died of an acute event
(gastrointestinal bleeding) during the time he was
hospitalized in July 1993. There is no post mortem
examination, so the cause of the death is conjectural.
Nevertheless, this man had been bleeding recurrently
during his hospitalization and it is certainly possible that
he died from acute gastrointestinal bleeding. Dr.
Woolum thought that another possibility for cause of
death was pulmonary embolism. None of the physicians
caring for the patient at this point indicated that
[Decedent] died due to either his lung disease or to coal
worker’s pneumoconiosis. Therefore, the cause of death
is either gastrointestinal bleeding or pulmonary
embolism, neither of which have been shown to be
caused by pneumoconiosis or chronic obstructive
pulmonary disease.

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No. 01-4064 Eastover Mining Co. v. Williams et al. 11
(J.A. at 285.) In his decision, ALJ Kichuk disregarded the
conflicting x-ray analyses, observing that the “evidence of
record does not indicate that [Respondent] has established the
presence of complicated coal workers’ pneumoconiosis by
chest x-ray.” (J.A. at 31.) Judge Kichuk also noted the lack
of any biopsy or autopsy evidence to support a diagnosis of
pneumoconiosis.
Nevertheless, ALJ Kichuk found Respondent’s position
more compelling. ALJ Kichuk said that Woolum’s opinion:
[was the] most reasoned and persuasive . . . because it
includes the most comprehensive analysis of all the
elements of the miner’s occupational and medical
history. Moreover, Dr. Woolum personally treated the
miner and was his principal caregiver for fourteen (14)
years, from 1979, until [Decedent] passed away in July
of 1993. His treatment of [Decedent] over the years is
fully and painstakingly documented in the record, which
includes, but is not limited to, thirteen (13)
hospitalizations (at least five for acute respiratory failure)
and each time conducting chest x-rays, EKGs, and
arterial blood gas studies. From January of 1990, Dr.
Woolum also diagnosed [Decedent] with cor pulmonale
and end-stage chronic obstructive pulmonary disease.
I accord greatest weight to Dr. Woolum’s opinion, not
simply because he was the miner’s treating physician for
many years, but because he based his medical opinion
upon numerous objective studies obtained during the
miner’s multiple hospital admissions for acute
respiratory distress. In sum, Dr. Woolum specifically
identified the studies and observations upon which he
relied and the conclusions he reached are consistent with
and supported by the underlying objective evidence of
record.
12 Eastover Mining Co. v. Williams et al. No. 01-4064
9Technica lly, this Court is reviewing the BRB ’s decision affirming
the ALJ, not the ALJ’s decision itself. Thus, we do not consider whether
the BRB’s decision was supported by substantial evidence, but whether
the BR B correctly concluded that substantial evidence suppo rted the
ALJ ’s decisio n. See, e.g., Zimmerma n v. D ir., OW CP , 871 F.2d 564, 567
(6th Cir. 19 89); Bizzarri v. Consolida tion Coal Co., 775 F.2d 751, 753
(6th Cir. 1985). The standards o f review are the same. Cross Moun tain
Coal, Inc. v. Wa rd, 93 F.3d 211, 215 (6th Cir. 1996) (“The standards of
review for the BRB and this court are the same.”) (citing Welch v. B enefits
Review Bd., 808 F.2d 443, 445 (6th Cir.1986) (per curiam)). This Court
reviews the legal issues de novo but affords deference to relevant factual
findings.
(J.A. at 35.) ALJ Kichuk added that he did not believe
Woolum’s opinion was a “gratuity extended to a patient by a
sympathetic treating physician.” (Id.)
When the BRB affirmed, Petitioner timely appealed to this
Court.
DISCUSSION
This appeal presents issues of administrative practice and
procedure that are mixed questions of law and fact. We
review questions of law de novo. Peabody Coal Co. v. Greer,
62 F.3d 801, 804 (6th Cir. 1995) (“This Court has plenary
authority to review the Board's legal conclusions.”) (citing
Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1119 (6th
Cir.1984)). To the extent we must review factual conclusions
as well, we do so with much greater deference. 33 U.S.C.
§ 921(b)(3). This Court will affirm an ALJ’s factual findings
when substantial evidence supports those conclusions.
Consolidation Coal Co. v. Worrell, 27 F.3d 227, 230-31 (6th
Cir. 1994). Where, however, an ALJ has improperly
characterized the evidence or failed to account of relevant
record material, deference is inappropriate and remand is
required.9 Dir., OWCP v. Rowe, 710 F.3d 251, 255 (6th Cir.
1983). From the outset, we note that claimants have the
burden of proof in black lung benefit proceedings. The Black
Lung Benefits Act, 30 U.S.C. §§ 901-62 (1994), creates an

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No. 01-4064 Eastover Mining Co. v. Williams et al. 13
10In its entirety, the applicable regulation read s:
(c) For the purpose of adjudicating survivors' claims filed on or
after January 1, 1982 , death will be co nsidered to be due to
pneumo coniosis if any of the following criteria is met:
(1) W here competent medical evidence establishes that
pneumoconiosis was the cause of the miner's death, or
(2) W here p neum oco niosis was a substantially contributing
cause or factor leading to the miner's death or where the
death was caused by complications of pneumoconiosis, or
(3) W here the presump tion set forth at § 7 18.3 04 is
applicable.
(4) However, survivo rs are not eligible for benefits where
the miner's death was caused by a traum atic injury or the
principal cause of death was a medical condition not related
to pneumoconiosis, unless the evidence establishes that
pneumo coniosis was a substantially contributing cause of
death.
(5) Pneumo coniosis is a "substantially contributing cause"
of a miner's death if it hastens the miner's death.
20 C.F.R. § 718.205. The presump tions in § 718.30 4 apply only when a
claimant can offer certain medical evidence, and Respondent does not
claim that any of the presump tions applies in this case. See 20 C.F.R.
§ 71 8.30 4.
adversarial administrative procedure designed to require
mining companies to pay those miners (or the survivors of
those minors) who legitimately suffer from a class of different
coal dust-related pulmonary injuries commonly categorized
as pneumoconiosis. Petitioner is eligible for benefits if
pneumoconiosis caused or “hasten[e]d the miner’s death.”10
20 C.F.R. § 718.205(c)(5). Congress defined
“pneumoconiosis” as a “chronic dust disease of the lung and
its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment.” 30
U.S.C. § 902(b) (1994).
14 Eastover Mining Co. v. Williams et al. No. 01-4064
Department of Labor (DOL) regulations help further
describe “pneumoconiosis” by providing an illustrative listing
of diseases that pneumoconiosis includes:
For the purpose of the Act, pneumoconiosis means a
chronic dust disease of the lung and its sequelae,
including respiratory and pulmonary impairments,
arising out of coal mine employment. This definition
includes, but is not limited to, coal workers’
pneumoconiosis, anthracosilicosis, anthracosis,
anthrosilicosis, massive pulmonary fibrosis, progressive
massive fibrosis, silicosis, or silicotuberculosis, arising
out of coal mine employment.
20 C.F.R. § 718.201 (1997). As this regulation makes clear,
legal “pneumoconiosis” encompasses medical conditions
other than clinical pneumoconiosis. See, e.g., Nance v.
Benefits Review Bd., 861 F.2d 68, 71 (4th Cir. 1988). Clinical
or medical pneumoconiosis is a lung disease caused by
fibrotic reaction of the lung tissue to inhaled dust that is
generally visible on chest x-ray films. See, e.g., Usery v.
Turner-Elkhorn Mining Co., 428 U.S. 1, 6-7 (1976). Legal
pneumoconiosis includes all lung diseases meeting the
regulatory definition of any lung disease that is significantly
related to, or aggravated by, exposure to coal dust. See, e.g.,
Hobbs v. Clichfield Coal Co., 917 F.2d 790, 791 (4th Cir.
1990).
Under DOL regulations, a claimant may establish legal
pneumoconiosis by any of four different methods of proof:
(1) x-ray evidence; (2) autopsy or biopsy evidence;
(3) evidence of complicated medical pneumoconiosis or
progressive massive fibrosis; or (4) reasoned and documented
medical opinions. 20 C.F.R. § 718.202(a)(1)-(4). As noted,
the claimant bears the burden of proof. Greenwich Collieries,
512 U.S. at 281. The presence of evidence favorable to the
claimant or even a tie in the proof will not suffice to meet that
burden. Id.

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No. 01-4064 Eastover Mining Co. v. Williams et al. 15
Despite a certain degree of lingering confusion among the
courts of appeals, it has become overwhelmingly evident that
the testimony of the “treating physician” receives no
additional weight. Sometimes termed the “treating physician
rule,” claimants have argued that the treating physician’s
analysis should receive greater significance in ALJ decisions
(if not dispositive weight) relative to analyses performed by
other experts.
In addition to the black lung context, the “treating physician
rule” plays a role in Social Security proceedings pursuant to
regulations that stipulate that the Commissioner of Social
Security must give special weight to the claimant’s treating
physician when determining whether a claimant deserves
disability benefits. See 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2) (2002). Courts have also applied the “treating
physician rule” in disability determinations under employee
benefit plans covered by the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-53. See,
e.g., Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 533
(6th Cir. 2003), overruled by Black & Decker Disability Plan
v. Nord, 123 S.Ct. 1965 (2003) (Ginsburg, J.) (criticizing, in
an opinion by a unanimous Court, the usefulness of granting
deference to the opinion of a treating physician).
In Black & Decker Disability Plan v. Nord, 123 S.Ct. at
1969, the Supreme Court recently reversed a Ninth Circuit
decision, Nord v. Black & Decker Disability Plan, 296 F.3d
823, 831 (9th Cir. 2002), that afforded deference to treating
physicians in ERISA-related disability determinations.
Although Black & Decker dealt with ERISA, the unanimous
Court disapproved of the “treating physician rule” with
language that criticizes the principle itself, rather than its
operation in an ERISA context. See Black & Decker, 123
S.Ct. at 1971. As Justice Gisburg explained, ERISA
regulations that require a “full and fair” assessment of claims
“do not command plan administrators to credit the opinions
of treating physicians over other evidence relevant to the
16 Eastover Mining Co. v. Williams et al. No. 01-4064
11As noted, Social Security benefit determinations are governed by
regulations that require de ference to treating physicians, see 20 C.F.R.
§§ 404 .152 7(d)(2), 416.9 27(d)(2), while neither ERISA nor Black Lung
regulations contain a similar requirement. The Black & Decker Court
noted that deference to treating physicians makes m ore sense in the Social
Security context because “[p]resumptions employed by the [Social
Security] Comm issioner’s regulations grow out of the need to administer
a large benefits system efficiently.” Id. at 1971 (quotation omitted). This
rationa le is inapplicable to the black lung bene fits scheme, which affects
dram atically fewer people and whose remaining claimants will decrease
naturally as time passes.
claimant’s medical condition.”11 Id. at 1967. The Court
explained in detail:
The question whether a treating physician rule would
increase the accuracy of disability determinations under
ERISA plans . . . seems to us one the Legislature or
superintending administrative agency is best positioned
to address. As compared to consultants retained by the
plan, it may be true that treating physicians, as a rule,
have a greater opportunity to know and observe the
patient as an individual. Nor do we question the . . .
concern that physicians repeatedly retained by benefits
plans may have an incentive to make a finding of ‘not
disabled’ in order to save their employers money and to
preserve their own consulting arrangements. But the
assumption that the opinions of a treating physician
warrant greater credit than the opinions of plan
consultants may make scant sense when, for example, the
relationship between the claimant and the treating
physician has been or short duration, or when a specialist
engaged by the plan has expertise the treating physician
lacks. And if a consultant engaged by a plan may have
an “incentive” to make a finding of “not disabled,” so a
treating physician, in a close case, may favor a finding of
“disabled.” Intelligent resolution of the question of
whether routine deference to the opinion of a claimant’s
treating physician would yield more accurate disability

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No. 01-4064 Eastover Mining Co. v. Williams et al. 17
12Judge Kennedy still dissented from Peabody Coal v. Groves,
explaining that she saw “no reason why a treating physician’s opinion that
one condition caused or contributed to another should be accepted in the
face of exp ert opinions to the contrary, at least where there is no logical
explanation for doing so offered by the A LJ.” 2 77 F .3d at 837 (Kenned y,
J., dissenting).
determinations, it thus appears, might be aided by
empirical investigation of the kind courts are ill-equipped
to conduct.
Id. at 1971 (internal quotations and citations omitted). The
Court thus notes that treating physicians may have strong pro-
claimant biases and lack the expertise held by non-treating
doctors. These critiques of the “treating physician rule” apply
with equal force to the notion that treating physicians should
receive deference in black lung proceedings.
In fact, the courts of appeals, including this one, have often
recognized that there is no “treating physician rule” in black
lung cases, although this Court’s jurisprudence is somewhat
equivocal. In Tussey v. Island Creek Coal Co., 982 F.2d 1036
(6th Cir. 1993), this Court wrote that “opinions of treating
physicians are entitled to greater weight than those of non-
treating physicians.” Id. at 1042. Subsequently, however, we
withdrew from the language in Tussey, explaining that Tussey
“did not suggest that treating physicians should automatically
be presumed to be correct—we indicated that their opinions
should be ‘properly credited and weighed.’”12 Peabody Coal
Co. v. Groves, 277 F.3d 829, 834 (6th Cir. 2002) (quoting
Tussey, 982 F.2d at 1042). In another case more recent than
Peabody Coal, we unambiguously stated that “the
misconceived ‘treating physician presumption’ does not
exist.” Wolf Creek Collieries v. Dir., OWCP, 298 F.3d 511,
521 (6th Cir. 2002) (emphasis added); see also Jericol
Mining, Inc. v. Napier, 301 F.3d 703, 709 (6th Cir. 2002)
(quoting Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849,
861 (D.C. Cir. 2002), for the proposition that ‘“[t]he
consensus among courts has been that an agency adjudicator
18 Eastover Mining Co. v. Williams et al. No. 01-4064
may give weight to the treating physician’s opinion when
doing so makes sense in light of the evidence and the record,
but may not mechanistically credit the treating physician
solely because of his relationship with the claimant”); Griffith
v. Dir., OWCP, 49 F.3d 184, 187 (6th Cir. 1995) (citing
Tussey for the Court’s conclusion that “under these
circumstances, the ALJ was not required to give greater
weight to the opinion of the treating physician”).
Other circuits have also rejected the treating physician rule
in black lung litigation. See, e.g., Kennellis Energies, Inc. v.
Hallmark, __ F.3d __, 2003 WL 21464596, at *6 (7th Cir.
2003) (“[A] preference or the treating physician’s opinion . . .
has been rejected by this Circuit.”) (citations omitted);
Peabody Coal Co. v. McCandless, 255 F.3d 465, 469 (7th
Cir. 2001) (calling a treating physician preference
“irrational,” in part because “[t]reating physicians often
succumb to the temptation to accommodate their patients (and
their survivors) at the expense of third parties such as
insurers, which implies attaching a discount rather than a
preference to their views”); Lango v. Dir., OWCP, 14 F.3d
573, 576-77 (3d Cir. 1997) (finding treating physician’s
conclusory statement that coal miner’s pneumoconiosis
hastened his death did not support black lung benefits claim).
As the Fourth Circuit explained:
Neither this circuit nor the Benefits Review Board has
ever fashioned either a requirement or a presumption that
treating or examining physicians' opinions be given
greater weight than opinions of other expert physicians.
We have often stated that as a general matter the opinions
of treating and examining physicians deserve especial
consideration. We stated, for example, in Hubbard v.
Califano, 582 F.2d 319, 323 (4th Cir.1978), that "[we]
place[ ] great reliance on a claimant's treating physician,"
and, citing Hubbard, in King v. Califano, 615 F.2d 1018,
1020 (4th Cir.1980), that "[we] place[ ] great reliance on
the conclusions of a claimant's examining physician." In
neither case, however, did we suggest, much less hold,

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No. 01-4064 Eastover Mining Co. v. Williams et al. 19
that the opinions of treating or examining physicians
must be accorded greater weight than opinions of other
physicians. It is, of course, one thing to say that we give
great weight to the treating or examining physician's
opinion; it is quite another to say that as a matter of law
we give greater weight to such an opinion than to
opinions by other physicians. The ALJ therefore was not
required to defer to Dr. Soliva's diagnoses or to accord
them greater weight than the opinions of the other
physicians.
Grizzle v. Pickands Mather & Co./Chisolm Mines, 994 F.2d
1093, 1097-98 (4th Cir. 1993); see also Island Creek Coal
Co. v. Compton, 211 F.3d 203, 212 (4th Cir. 2000) (“An ALJ
may not discredit a physician’s opinion solely because the
physician did not examine the claimant.”). Thus, most courts
do not afford additional deference to treating physicians.
The Department of Labor recently promulgated regulations
with respect to the role treating physicians should play in
black lung benefit determinations, but these rules do little
more than explain that sometimes a treating physician may
“have a thorough understanding of a miner’s condition,” but
in other cases, ALJs should not rely on the opinions of
treating physicians. See 20 C.F.R. § 718.104(d)(2002).
Rejecting “automatic acceptance” of the treating physician’s
opinion, the DOL intended the rule “to force a careful and
thorough assessment of the treating relationship.”
Regulations Implementing the Federal Coal Mine and Safety
Act of 1969, as Amended, 65 FED. REG. 79,920, 79,932 (Dec.
20, 2000) [hereinafter Implementing Regulations]. To
effectuate this end, the DOL’s regulation states:
(d) Treating physician. In weighing the medical
evidence of record relevant to whether the miner suffers,
or suffered, from pneumoconiosis, whether the
pneumoconiosis arose out of coal mine employment, and
whether the miner is, or was, totally disabled by
pneumoconiosis or died due to pneumoconiosis, the
20 Eastover Mining Co. v. Williams et al. No. 01-4064
13The regulation did not become effective until December 20, 2000,
so the ALJ did not have its benefit when he made his decision. The BRB,
however, issued the decision presently under review on January 31, 2001.
adjudication officer must give consideration to the
relationship between the miner and any treating
physician whose report is admitted into the record.
Specifically, the adjudication officer shall take into
consideration the following factors in weighing the
opinion of the miner's treating physician:
(1) Nature of relationship. The opinion of a physician
who has treated the miner for respiratory or pulmonary
conditions is entitled to more weight than a physician
who has treated the miner for non-respiratory
conditions;
(2) Duration of relationship. The length of the
treatment relationship demonstrates whether the
physician has observed the miner long enough to
obtain a superior understanding of his or her condition;
(3) Frequency of treatment. The frequency of
physician-patient visits demonstrates whether the
physician has observed the miner often enough to
obtain a superior understanding of his or her condition;
and
(4) Extent of treatment. The types of testing and
examinations conducted during the treatment
relationship demonstrate whether the physician has
obtained superior and relevant information concerning
the miner's condition.13

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No. 01-4064 Eastover Mining Co. v. Williams et al. 21
14Contrast the black lung regulation to the Social Security rule that
deals with treating physicians:
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical
professiona ls most able to provide a detailed, longitudinal
picture of your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from
the objective m edica l findings alone or from reports of
individual examinations, such as consultative examinations or
brief hospitalizations. If we find that a treating source's opinion
on the issue(s) of the nature and severity of your impairm ent(s)
is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in yo ur case record, we will give it
controlling weight.
20 C.F.R. § 404.152 7(d)(2). This further exemplifies the relevance of the
distinction the Black & Decker Court drew between ERISA and Social
Security. The Court, in effect, excused the treating physician rule in the
Social Security context because of the above-quoted regulatory mandate.
See Black & Decker, 123 S.Ct. at 1971. The black lung situation,
however, is much more like the ERISA issue before the Black & Decker
Court beca use no regulation mandates that either plan administrators or
ALJs handling black lung cases give treating physicians deference.
20 C.F.R. § 718.104(d) (2001). The regulation says nothing
about prioritizing a treating physician’s perspective;14 rather,
the regulation expects ALJs to analyze the nature and duration
of the doctor-patient relationship along with the frequency
and extent of treatment. This is similar to the kind of critical
analysis an ALJ should apply when considering any expert
opinion. The DOL further expects ALJs to weigh the report
of a treating physician “against all other relevant evidence in
the record.” Implementing Regulations, 65 FED. REG. at
79,934.
A simple principle is evident: in black lung litigation, the
opinions of treating physicians get the deference they deserve
based on their power to persuade. Cf. Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944) (affording an administrative
agency pronouncement only the weight it deserved in light of
22 Eastover Mining Co. v. Williams et al. No. 01-4064
15And even the ALJ gave that read er’s opinion “little or no weight”
because Simmons, the reader:
vacillates in his deposition testimony as to whether he believes
the miner had pneumoconiosis. Despite his status as a board-
certified radiologist and a B reader, he was unable to make a
final determination on the existence or non-existence of coal
workers’ pneumoconiosis (CW P), as evidenced by his testimony.
He first states that he read the chest x-ray as positive for CWP,
but then states that his was probably “overreading.”
(J.A. at 32.)
“the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade”). For instance, a highly qualified treating physician
who has lengthy experience with a miner may deserve
tremendous deference, whereas a treating physician without
the right pulmonary certifications should have his opinions
appropriately discounted. The case law and applicable
regulatory scheme make clear that ALJs must evaluate
treating physicians just as they consider other experts.
As explained, Respondent may prove her case through
autopsy or biopsy evidence, x-ray evidence, evidence of
complicated medical pneumoconiosis or progressive massive
fibrosis, or reasoned and documented medical opinions. 20
C.F.R. § 718.202(a)(1)-(4). Since Respondent offered no
autopsy or biopsy evidence, we may move directly to
Decedent’s x-rays.
Writing that the “evidence of record does not indicate that
[Respondent] has established the presence of complicated
coal workers’ pneumoconiosis by chest x-ray,” the ALJ
never relied on x-ray evidence. (J.A. at 31.) This is
unsurprising given the paucity of x-ray analyses that support
Respondent’s position. Only one of the six fully-credentialed
readers found pneumoconiosis, and he did so based on a film
taken ten years before Decedent died.15 (J.A. at 30-31.) Less

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No. 01-4064 Eastover Mining Co. v. Williams et al. 23
16Powell and P enman evid ently based their conclusions on film taken
on November 26, 1984, and Clarke based his analysis on x-rays taken the
following day.
qualified x-ray analysts reached myriad results, but the ALJ
permissibly considered the readers’ respective qualifications
and appropriately discounted the opinions of those not fully
qualified. See Staton v. Norfolk & W. Ry., 65 F.3d 55, 59 (6th
Cir. 1995).
In addition to Woolum’s two letters, the ALJ considered
opinions from eight other physicians. For simplicity, one can
group these eight physicians into two categories: those
Respondent argues support her (Clarke, Penman, Powell, and
Wright); and those who back Petitioner’s position (Simmons,
Powell, Anderson, Sargent, and Dahhan).
As the ALJ appropriately recognized, three of the opinions
offered by Respondent’s group (Clarke, Penman and Powell)
have very little significance because they “did not conduct
complete pulmonary evaluations of the miner” and “these
physicians based their opinions on the x-ray evidence, which
I have previously found not sufficient to establish the
existence of CWP [Coal Workers’ Pneumoconiosis].”16 (J.A.
at 32-33.) As we have concluded before, merely restating an
x-ray does not qualify “as a reasoned medical judgment.”
Cornett v. Benham Coal, Inc., 27 F.3d 569, 576 (6th Cir.
2000). Furthermore, an ALJ may not rely on a doctor’s
opinion that a patient has medical pneumoconiosis when the
physician bases his opinion entirely on x-ray evidence the
ALJ has already discredited. Island Creek, 211 F.3d at 211-
12; Sahara Coal Co. v. Fitts, 39 F.3d 781, 783 (7th Cir.
1994).
Although still problematic, Wright offered the most
persuasive testimony on Respondent’s behalf. He based his
conclusion partly on a putatively positive x-ray taken on
March 30, 1985, but also on pulmonary function studies
24 Eastover Mining Co. v. Williams et al. No. 01-4064
revealing severe restrictive and obstructive defects and
arterial blood gas studies that indicated substantial
impairments. On this basis, the ALJ gave greater weight to
Wright’s opinion “on the issue of the existence of
pneumoconiosis.” (J.A. at 35.) But Wright’s opinion is
troubling because he only maintains board certifications in
anesthesiology and pain management, neither of which is
germane here. Moreover, Wright testified that
pneumoconiosis was a substantial and contributing factor that
led to the problems detected by the pulmonary function
studies and blood gas tests, but Wright also stated that
cigarette smoking was the predominant cause of Decedent’s
lung disease. Wright testified:
COUNSEL: Getting right down to the nitty-gritty in
this, Doctor, you don’t think this man’s
very poor pulmonary function is a result of
[medical] pneumoconiosis, do you?
WRIGHT: No.
COUNSEL: What is your opinion as their cause? [sic]
WRIGHT: His chronic obstructive lung disease with
emphysema.
COUNSEL: And in your opinion, what is the most
probable or predominant cause of that
disease?
WRIGHT: The predominant cause is probably
cigarette smoking.
(Dep. 21 at 362.) Even if one understands Wright to mean
that smoking caused most of the problem, but medical
pneumoconiosis still contributed to Wright’s poor pulmonary
condition—that says nothing about the ultimate issue, which
is whether legal pneumoconiosis hastened Decedent’s death.
Recall that the ALJ concluded his discussion of Wright’s

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No. 01-4064 Eastover Mining Co. v. Williams et al. 25
testimony by explaining that he gave great weight to Wright’s
opinion “on the issue of the existence of pneumoconiosis.”
(J.A. at 35) (emphasis added). Wright never testified that
pneumoconiosis (legal or medical) hastened Decedent’s
demise.
The conclusions reached by Petitioner’s group of experts
are somewhat more useful. The ALJ reasonably discounted
Simmons’ contribution because Simmons seemed “equivocal
at best.” (J.A. at 32.) The ALJ also discredited Anderson’s
opinion because he did not do pulmonary function studies on
the miner and only “suspected” smoking caused the COPD.
Sargent’s opinion, however, is more helpful, because Sargent,
board-certified in pulmonary medicine, expressly concluded
that pneumoconiosis did not cause the miner’s death. The
ALJ criticized Sargent’s analysis because Sargent never
examined Decedent and evidently relied on an incomplete
medical file that did not include pulmonary function studies.
Nevertheless, Sargent concluded that
Very clearly, this man died of an acute event
(gastrointestinal bleeding) during the time he was
hospitalized in July 1993. . . . Dr. Woolum thought that
another possibility for cause of death was pulmonary
embolism. . . . Therefore, the cause of death is either
gastrointestinal bleeding or pulmonary embolism, neither
of which have been shown to be caused by
pneumoconiosis or chronic obstructive pulmonary
disease.
(J.A. at 285.) Again, the ultimate question is not whether
Decedent had medical or legal pneumoconiosis, but whether
legal pneumoconiosis hastened his death. Even assuming,
arguendo, that access to pulmonary function studies would
have caused Sargent to reconsider his opinion that the miner
did not have medical pneumoconiosis, this ancillary point
does not implicate Sargent’s two primary conclusions
articulated in the above-quoted passage: (1) the miner died of
an acute event, probably gastrointestinal bleeding but perhaps
26 Eastover Mining Co. v. Williams et al. No. 01-4064
17W hen Dahhan first examined Decedent in 1983, Dahhan concluded
that smoking caused Decedent’s pulmonary pro blems. Likewise, Sargent
explained that Decedent’s blood gases showed severe hypoxemic
hypercapnic respiratory failure on a chronic basis—a finding that
indicates CO PD caused by sm oking, not pneumoconiosis.
a pulmonary embolism; and (2) neither pneumoconiosis nor
COPD causes either gastrointestinal bleeding or pulmonary
embolism. Therefore, Sargent concluded that
pneumoconiosis, even if it existed, did not cause the miner’s
death.
The ALJ also struggled to dispatch with Dahhan’s opinion.
Dahhan, board-certified in pulmonary medicine, found no
medical pneumoconiosis. The ALJ’s analysis of Dahhan’s
reasoning is somewhat desultory, but he seems to criticize
Dahhan for “fail[ing] to adequately explain why the miner’s
37 year [mining] history has nothing to do with his lung
condition,” and for neglecting that COPD falls within the
definition of “legal” pneumoconiosis. (J.A. at 34.) It makes
no sense, however, to assume that because Dahhan does not
explain why Decedent’s work as a miner has not caused his
lung impairment, then his work as a miner must have caused
his lung impairment.17 Furthermore, although Dahhan
concluded that the miner had COPD, only COPD caused by
coal dust constitutes legal pneumoconiosis. See 20 C.F.R.
§ 718.201(a)(2). Otherwise, everyone who developed COPD
from smoking would have legal pneumoconiosis. Dahhan
concluded that the miner’s “death was contributed to greatly
by his advanced chronic obstructive lung disease with no
evidence that his death was contributed to or hastened by his
exposure to coal dust or coal worker’s pneumoconiosis.”
(J.A. at 280) (emphasis added.)
Thus, Dahhan did not, as the ALJ claims, ignore COPD.
Rather, Dahhan stated that coal dust did not cause the COPD.
Most important, Dahhan appropriately addressed the real
issue when he explained that “[Decedent’s] death would have
been at the same time and the same manner regardless of his

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No. 01-4064 Eastover Mining Co. v. Williams et al. 27
18Responde nt effectively concedes this. Again, the only relevant
issue is whether legal pneumoconiosis hastened Decedent’s death. In her
brief, Respo ndent writes:
W ith respect to the issue of whether p neum oco niosis hastened
[Deced ent’s] death, the record contains five (5) sources of
evidence, including: the treatment notes of Dr. Jerry Woolum,
the miner’s treating physician; the death certificate; the
testimony of Petitioner [Decedent’s wife]; the consultative report
of Dr. Dahhan and the consultative report of Dr. Sarge nt.
(Pet’r Br. at 17.) Notably, Respondent neglects to mention the various
exposure to coal dust or the presence of occupational
pneumoconiosis, since it was the result of an upper GI bleed,
[a] condition of the general public at large.” (J.A. at 281.)
If one analyzed the evidence without the treating
physician’s opinion, it would be evident that substantial
evidence does not support the ALJ’s conclusion that
Respondent met her burden of proof. Consider the evidence
without Woolum’s input: Respondent offered no biopsy or
autopsy reports. Five of the six fully-qualified x-ray readers
saw no pneumoconiosis, and the sixth (Simmons) was
indecisive. None of the other medical evidence is incredibly
compelling. The dispositive question is whether legal
pneumoconiosis contributed to the miner’s death. Only two
physicians (Sargent and Dahhan), both specialists in
pulmonary medicine, addressed this issue, and both
concluded that coal dust-related disorders (legal
pneumoconiosis) did not hasten Decedent’s death.
In fact, without Woolum’s contribution, Petitioner would
have no argument but to infer that Decedent must have
suffered from legal pneumoconiosis because he worked for
decades as a miner, and since he had legal pneumoconiosis,
it must have contributed to his death. Since this baseless
statement is grossly insufficient, the supportability of the
ALJ’s conclusion depends on Woolum, the treating
physician.18
28 Eastover Mining Co. v. Williams et al. No. 01-4064
tidbits of x-ray and medica l evidence that she emphasizes elsewhere . The
death certificate lists the cause of death as a pulmonary embolism, caused
by COP D, itself due to an acute intestinal bleed. COPD qualifies as a type
of legal pneumoco niosis only when caused by coal dust, not an acute
intestinal bleed . Resp ondent herself has no medical knowledge and an
obvious bias. The ALJ did not rely on her description of Decedent. That
leaves only Sargent and Dahhan, who aid Petitioner’s case, and Woolum,
the treating physician.
Woolum’s testimony suffers from several serious problems
that render his opinion an inadequate basis for the ALJ’s
conclusion unless his hypothesis receives disproportionately
great weight simply because he worked as Decedent’s treating
physician. Since no such presumption exists, there is no
substantial evidence supporting the ALJ’s conclusion.
Circumstantial factors strongly indicate that Woolum
changed his original opinion to meet Respondent’s needs. As
summarized above, the original ALJ, Judge Rippey, held a
pre-hearing conference between the parties on February 14,
1995. At that session, ALJ Rippey told Respondent’s counsel
that he found Woolum’s initial letter insufficient to establish
that pneumoconiosis played a role in Decedent’s death.
Woolum’s first analysis stated “that this gentleman was
disabled secondary to his lung disease of which
pneumoconiosis, in my mind, was certainly a contributing
factor.” (J.A. at 72.) Woolum did not claim pneumoconiosis
caused the miner’s death.
After Respondent’s attorney learned that Woolum’s initial
conclusion would not suffice, Woolum drafted a new letter,
this time reckoning that, “within a reasonable degree of
medical probability,” pneumoconiosis “hastened [Decedent’s]
death.” (Id.) Woolum wrote the first letter on February 24,
1994, but did not write the second memorandum until March
10, 1995—less than a month after the parties met with ALJ
Rippey. Woolum treated Decedent for fourtneen years, but
did not diagnose him with pneumoconiosis until after he
allegedly died from it.

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No. 01-4064 Eastover Mining Co. v. Williams et al. 29
19One could view the ALJ’s decision to cred it Woolum’s testimony
despite the surrounding circumstances as a “clearly erroneous” factual
decision, but the ALJ is a judge of credibility and, however awkward the
situation, the ALJ may have b elieved W oolum alwa ys intended to express
his honest belief that legal pneumoco niosis caused the miner’s death.
Even so, the problem with the pro ceed ings below is more legal mistake
that factual error— assuming W oolum’s op inion deserved so me weight,
it does not alone constitute substantial evidence in Respondent’s favor
unless the AL J and the BRB afforded the treating physician’s opinion
much greater significance that its inherent persuasive va lue warrants.
This seems like a case in which the treating physician
wanted to help his patient’s family. Despite Woolum’s
almost certainly benevolent intent, the sequence of events
makes his new conclusion dubious.19
Notwithstanding Woolum’s significant credibility problem,
there are other reasons to doubt his conclusion. First, as ALJ
Rippey noted, even in his second letter, Woolum could only
conclude with “a reasonable degree of medical probability”
that pneumoconiosis contributed to the miner’s death, rather
than the usual phrase, “reasonable degree of medical
certainty.” (J.A. at 255-56.) (emphasis added.) It is unclear
what “reasonable degree of medical probability” means. The
more common “reasonable degree of medical certainty”
already reflects the incertitude inherent in medical
conclusions—“certainty” in medicine only means “nearly
sure” relative to the existential sense of the word “certain.”
If a “medical certainty” is a conviction short of complete
certainty, then a “medical probability” must mean something
even less sure.
Second, Woolum attempted to connect the pulmonary
embolism to Decedent’s mining history by surmising that,
although the pulmonary embolus directly caused the miner’s
death, pneumoconiosis hastened his demise because the
miner’s “lack of oxygen [and] his retained carbon dioxide all
played an effect on all parts of his body.” (J.A. at 277.) Put
differently, Woolum argued that because Decedent had
30 Eastover Mining Co. v. Williams et al. No. 01-4064
pneumoconiosis, his body lacked oxygen and excessively
retained carbon dioxide. This weakened the miner, “played
an effect on all parts of his body,” and thereby hastened a
death that would have occurred anyway from the pulmonary
embolus. (Id.) Even if this is an accurate medical conclusion,
it is legally inadequate.
Again, Petitioner must show that pneumoconiosis
“hasten[e]d the miner’s death.” 20 C.F.R. § 718.205(c)(5).
One can always claim, as Woolum did, that if
pneumoconiosis makes someone weaker, it makes them less
resistant to some other trauma. If, for instance, a miner with
pneumoconiosis gets hit by a train and bleeds to death,
Woolum (or someone adopting his position) would argue that
the pneumoconiosis “hastened” his death because he bled to
death somewhat more quickly than someone without
pneumoconiosis. This is absurd, of course, and presumably
not what Congress meant by “hasten.” Under Woolum’s
interpretation, pneumoconiosis would virtually always
“hasten” death to at least some minimal degree. Legal
pneumoconiosis only “hastens” a death if it does so through
a specifically defined process that reduces the miner’s life by
an estimable time. Woolum’s letter is conclusory and
inadequate because Woolum just asserts that because (in
Woolum’s opinion) the miner had pneumoconiosis, the
disease must have hastened his death.
Third, the ALJ ignores Woolum’s credentials. Woolum has
no special expertise in reading x-rays, but the ALJ gave
weight to Woolum’s x-ray analysis that he did not give to the
fully-credentialed readers who found no evidence of medical
pneumoconiosis. Woolum has no board certification in
pulmonary medicine, but the ALJ accepted Woolum’s
assertion that a coal dust-related ailment contributed to the
miner’s demise over the opinions of two board-certified
pulmonary specialists who reached the opposite conclusion.
Although the DOL’s new regulations regarding treating
physicians did not take effect until after the ALJ reached his

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No. 01-4064 Eastover Mining Co. v. Williams et al. 31
20There is another concerning issue, perhaps only a minor procedural
quirk. To receive benefits as a survivor, Respo ndent must show at least
that legal pneumoconiosis “hasten[e]d the miner’s death.” 20 C.F.R.
§ 718 .205 (c)(5). The initial opinion drafted by ALJ Kichuk concluded
that “the miner’s pneumoconiosis was a contributing factor in causing his
death.” In its second remand , the BRB instructed ALJ Kichuk “to
[re]consider whether the existence of pneumoconiosis is estab lished.”
(J.A. at 47.) It seems unlikely and bizarre that the BRB could have meant
for the parties to relitigate the existence of legal pneumoconiosis but not
whether it caused the miner’s death. Put differently, it would be odd for
the BRB to have effectively concluded that “we don’t know whether the
miner had pneumoc oniosis, but if he did, it must have contributed to his
death.” On the second remand, the parties litigated both existence and
causation. The ALJ concluded that Resp ondent met her burden of
establishing the existence of legal pneumoconiosis,” but he never decided
whether he also thought Respondent met her burden of establishing that
legal pneumoc oniosis contributed to the miner’s death. Yet, in the third
BRB opinion (affirming the second remand), the BRB concluded that
“[i]nasmuch as the administrative law judge’s determination that claimant
established the existence of pneumoc oniosis . . . and death du e to
pne um oco niosis . . . is supported by substantial evidence, we affirm the
administrative law judge’s award of survivor’s benefits.” (J.A. at 15)
(emp hasis added.) Since the ALJ opinion then under review never
concluded anything about causation, one wonders how the B RB could
affirm the ALJ’s conclusion that “death [was] due to pne umoconiosis.”
(Id.) This may render the BRB ’s third order unsupported by substantial
evidence. The easiest solution may be to infer that the ALJ decision
following the second remand indirectly addressed both existence and
causation.
The whole issue is immaterial because Resp ondent did not offer any
evidence of causation in the first two administrative hearings that she did
not offer again in the third. And, since the third BR B o rder is prop erly
before this Court, all conclusions drawn b y that opinion are pro perly
before us as w ell.
decision, they would not alter the outcome of this case.
Under the new regulations, the ALJ must consider a multitude
of factors that, viewed overall, simply ask whether the
treating physician has offered a persuasive opinion. See 20
C.F.R. § 718.104(d). In this case, he did not. To reach his
conclusion, the ALJ had to give preference to the treating
physician. Since that is impermissible, the BRB erred in
affirming the ALJ’s decision.20
32 Eastover Mining Co. v. Williams et al. No. 01-4064
The confusion, however, does emphasize the need for administrative
bod ies to make their opinions clear.
For all the aforementioned reasons, we REVERSE the
Benefits Review Board.

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