Donald D. Stalcup v. PEABODY COAL COMPANY and DIRECTOR , OFFICE OF WORKERS ’ COMPENSATION PROGRAMS

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1250
D ONALD D. S TALCUP ,
Petitioner,
v.
P EABODY C OAL C OMPANY and
D IRECTOR , O FFICE OF W ORKERS ’
C OMPENSATION P ROGRAMS ,
Respondents.
____________
Petition for Review of an Order of the
Benefits Review Board.
No. 05-BLA-0482
____________
A RGUED O CTOBER 18, 2006—D ECIDED F EBRUARY 15, 2007
____________
Before P OSNER , E VANS , and S YKES , Circuit Judges.
S YKES , Circuit Judge. Donald D. Stalcup worked as a
coal miner at Peabody Coal Company for approximately
thirty years. In 1997 he filed for pneumoconiosis (or “black
lung”) benefits under the Black Lung Benefits Act, 30
U.S.C. §§ 901-944. An Administrative Law Judge (“ALJ”)
initially awarded Stalcup benefits, but on appeal, the
Benefits Review Board (“BRB”) vacated and remanded
the decision because the ALJ mischaracterized relevant
evidence, relied upon impermissible criteria to credit or
discredit evidence, and failed to explain the bases for
certain conclusions. The ALJ’s second decision, which

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again awarded benefits to Stalcup, also was vacated and
remanded by the BRB because of errors. The ALJ’s third
decision, which denied benefits, is the subject of this
appeal. The BRB affirmed that decision, finding it was
supported by substantial evidence. We disagree.
The BRB instructed the ALJ to reconsider three issues
on its second remand: (1) the medical opinion evidence
surrounding the existence of pneumoconiosis, (2) whether
Stalcup is “totally disabled” based on this medical opinion
evidence, and (3) whether the disability is due to pneumo-
coniosis. As to the first issue, five reliable medical opin-
ions were before the ALJ. The ALJ concluded the quali-
fications and expertise of each physician were equal and
held: “Drs. Castle, Tuteur and Dahhan found no pneumo-
coniosis, while Drs. Cohen and Koenig found the existence
of the disease. Because these opinions are entitled to
equal weight, I now find that [Stalcup] has not estab-
lished the existence of pneumoconiosis.”
As to the second issue, the ALJ stated that even if
Stalcup could establish pneumoconiosis, he is not totally
disabled under 20 C.F.R. § 718.204(b) (2006). The ALJ
assigned the most probative weight to opinions from Drs.
Cohen, Koenig, and Castle; Drs. Cohen and Koenig believe
Stalcup is totally disabled and Dr. Castle does not. Thus,
the ALJ concluded, “the weight of the reliable medical
evidence, alone, is in favor of finding total disability.”
Citing other types of evidence in the record, however, the
ALJ determined Stalcup was not totally disabled. Based
on these conclusions, there was no need for the ALJ to
reach the third issue.
We review the final decision of the ALJ to determine
whether it is rational, supported by substantial evidence,
and consistent with controlling law. Blakley v. Amax Coal
Co., 54 F.3d 1313, 1318 (7th Cir. 1995) (citations omitted).
This Court is “not authorized to affirm an administrative

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No. 06-1250 3
decision that is not reasoned.” Sahara Coal Co. v. Fitts, 39
F.3d 781, 783 (7th Cir. 1994). The importance of this rule
is especially clear in the context of black lung claims,
which often turn on science and involve conflicting med-
ical opinions. We have said that a “scientific dispute
must be resolved on scientific grounds.” Peabody Coal Co.
v. McCandless, 255 F.3d 465, 468 (7th Cir. 2001). This
requires the ALJ to “articulate a reason and provide
support for favoring one opinion over another.” Livermore
v. Amax Coal Co., 297 F.3d 668, 672 (7th Cir. 2002). More
specifically, an ALJ “must have a medical reason for
preferring one physician’s conclusion over another’s.”
McCandless, 255 F.3d at 469 (emphasis added). Accord-
ingly, when an ALJ is faced with conflicting evidence
from medical experts, he cannot avoid the scientific con-
troversy by basing his decision on which side has more
medical opinions in its favor. Fitts, 39 F.3d at 782. This
unreasoned approach, which amounts to nothing more
than a “mechanical nose count of witnesses,” id., would
promote a quantity-over-quality approach to expert
retention, requiring parties to engage in a race to hire
experts to insure victory.
In this case, the ALJ counted noses. He concluded the
qualifications and expertise of the physicians are equal
and then dodged the scientific controversy by counting
the reliable physicians on each side. Because Peabody
had more, it won. Nowhere does the ALJ indicate why
the opinions of Drs. Castle, Tuteur, and Dahhan (finding
no pneumoconiosis) are more persuasive than the con-
trary opinions of Drs. Cohen and Koenig. Nor did the
ALJ explain why the medical opinion finding no disability
was ultimately more persuasive than the opinions find-
ing total disability or explain why the other record evi-
dence was sufficient to overcome the opinions of Drs.
Cohen and Koenig. Because we cannot resolve the medical

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4 No. 06-1250
dispute on our own, McCandless, 255 F.3d at 469, the case,
regrettably, must be remanded for a fourth decision.
The BRB’s order is vacated, and the case is remanded
for further proceedings consistent with this order.
V ACATED AND R EMANDED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-15-07

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