Consolidation Coal Company v. Arthur O. Held

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CONSOLIDATION COAL COMPANY,
Petitioner,
v.
ARTHUR O. HELD; DIRECTOR, No. 99-2507 
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents. 
On Petition for Review of an Order of
the Benefits Review Board.
(98-876-BLA)
Argued: October 28, 2002
Decided: December 20, 2002
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge Luttig wrote the
majority opinion, in which Judge Williams joined. Judge Gregory
wrote a dissenting opinion.
COUNSEL
ARGUED: William Steele Mattingly, JACKSON & KELLY,
P.L.L.C., Morgantown, West Virginia, for Petitioner. Cheryl Cather-
ine Cowen, Waynesburg, Pennsylvania, for Respondent Held; Helen
Hart Cox, UNITED STATES DEPARTMENT OF LABOR, Wash-

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ington, D.C., for Respondent Director. ON BRIEF: Kathy L. Snyder,
JACKSON & KELLY, P.L.L.C., Morgantown, West Virginia, for
Petitioner. Henry L. Solano, Solicitor of Labor, Donald S. Shire,
Associate Solicitor, Patricia M. Nece, Counsel for Appellate Litiga-
tion, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent Director.
OPINION
LUTTIG, Circuit Judge:
Arthur Held, a longtime coal miner and smoker, sought benefits
under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., from his
former employer Consolidation Coal Company ("Consol"). An
administrative law judge granted Held benefits, concluding that he
had established the existence of pneumoconiosis by the weight of
medical opinion evidence. The Benefits Review Board affirmed and
Consol petitioned for review. Because the ALJ failed to weigh all the
relevant evidence together, as required by our decision in Island
Creek Coal Company v. Compton, 211 F.3d 203 (4th Cir. 2000), and
because the ALJ gave undue weight to the opinion of Held’s treating
physician, Dr. Tsai, we vacate and remand for further proceedings.
I.
For at least 32 years, Arthur Held had occupational exposure to
coal mine dust. He also has a cigarette smoking history of 1 pack per
day for at least 40 years. Held retired from coal mine employment in
1982 and filed his first application for federal black lung disability
benefits. An ALJ denied his application and he took no further action
concerning the claim.
Held filed a new application for benefits on March 14, 1996. Con-
sol was identified as the responsible coal mine operator. The parties
stipulated to a material change in condition and the ALJ conducted a
hearing.
The ALJ first noted that Held could not establish pneumoconiosis
under either subsection (a)(2) or (a)(3) of 20 C.F.R. § 718.202
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because there was no biopsy evidence and no applicable presump-
tions. The ALJ then considered the x-ray evidence, which consisted
of 29 chest x-rays that had been examined by numerous physicians.
Only 7 of the readings, by 6 physicians, were positive for pneumoco-
niosis. Fifty-two readings, by multiple physicians, were negative. The
ALJ concluded that the most recent x-ray evidence was in conflict
and thus he could not "find [that] the miner established CWP [coal
workers’ pneumoconiosis] through x-ray evidence alone." J.A. 526.
The medical opinion evidence was also in conflict. Drs. Tsai,
Jaworski, and Garson opined that Held had developed a totally dis-
abling chronic obstructive pulmonary disease as a result of both his
exposure to coal dust and his smoking history. Drs. Renn, Morgan,
and Fino testified that Held’s health problems resulted from his smok-
ing history, and not his exposure to coal dust. The ALJ credited the
opinions of Drs. Tsai, Jaworski, and Garson, discredited the opinions
of Drs. Renn, Morgan, and Fino, and concluded that Held had estab-
lished the existence of pneumoconiosis by the weight of medical
opinion evidence. After determining that Held had satisfied the other
elements necessary for a black lung claim, the ALJ awarded benefits
to Held, which were to commence from the month in which Held
filed his claim. Consol appealed to the Board, which affirmed. Consol
now petitions for review in this court.
II.
We review the Board’s order by undertaking an independent
review of the record to determine whether the ALJ’s findings of fact
were supported by substantial evidence. Island Creek Coal Company
v. Compton, 211 F.3d at 207. De novo review applies to the legal con-
clusions of the Board and ALJ. Id. at 208.
A.
Consol argues that the ALJ should have weighed all relevant evi-
dence of pneumoconiosis together. 20 C.F.R. § 718.202(a) provides
four ways in which a claimant can establish the presence of pneumo-
coniosis. The regulation states, in relevant part, that:
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(a) A finding of the existence of pneumoconiosis may be
made as follows:
(1) A chest X-ray conducted and classified in accordance
with § 718.102 may form the basis for a finding of the exis-
tence of pneumoconiosis. . . .
(2) A biopsy or autopsy conducted and reported in compli-
ance with § 718.106 may be the basis for a finding of the
existence of pneumoconiosis. . . .
(3) If the presumptions described in §§ 718.304, 718.305 or
§ 718.306 are applicable, it shall be presumed that the miner
is or was suffering from pneumoconiosis.
(4) A determination of the existence of pneumoconiosis may
also be made if a physician, exercising sound medical judg-
ment, notwithstanding a negative X-ray, finds that the miner
suffers or suffered from pneumoconiosis as defined in
§ 718.201. . . .
20 C.F.R. § 718.202. In Island Creek Coal Company v. Compton, we
were presented with the issue of whether ALJs could consider evi-
dence adduced under each of the four subsections of section
718.202(a) in the disjunctive. We rejected the Board’s argument that
if the evidence relevant to one subsection supported a finding of
pneumoconiosis, other evidence bearing on a different subsection
could be ignored. Instead, we decided that "the proper method is to
weigh the different types of evidence together to determine whether
a preponderance of all of the evidence establishes the existence of
pneumoconiosis." Compton, 211 F.3d at 208; see id. (concluding that
the "plain meaning" of 30 U.S.C. § 923(b) requires the weighing of
all relevant evidence together "rather than merely within discrete sub-
sections of § 718.202(a)").
In its opinion in this case, the ALJ stated that the Third Circuit had
held that evidence under each of the four methods of establishing the
disease must be considered together. J.A. 524 (citing Penn Allegheny
Coal Co. v. Williams, 114 F.3d 22 (3d Cir. 1997)). Having outlined
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the proper approach, the ALJ proceeded to ignore it. At no point in
its opinion did the ALJ weigh the evidence from the different subsec-
tions of section 718.202(a) against one another. And the Board, in
reviewing the ALJ, only considered whether the ALJ’s finding was
supportable under section 718.202(a)(4).1
The ALJ’s failure to weigh all the evidence together raises pre-
cisely the concern expressed in Compton that "the existence of pneu-
moconiosis could be found even though the evidence as a whole
clearly weighed against such a finding." 211 F.3d at 209. While there
was not a perfect consensus as to the x-ray evidence, the vast majority
of readers over time had found the x-ray results to be negative. See
J.A. 525 ("Fifty-two readings are negative, by multiple physicians, all
of whom are B-readers, and either board-certified in radiology or
internal medicine, or both. . . ."). Moreover, those physicians who
gave negative readings had, as a group, far more impressive creden-
tials than those who rendered positive readings. See id. (of the 6 phy-
sicians who gave a positive reading, only 2 were B-readers, 1 was an
A-reader, and 3 had unknown qualifications). If the ALJ had properly
balanced the x-ray evidence against the medical opinion evidence,
which was itself mixed, its conclusion may well have been different.2
Thus, as we did in Compton, the proper course for this court is to
vacate the ALJ’s decision and remand to allow the ALJ to weigh all
of the relevant evidence together.
1The Board’s opinion suggests that it thought the ALJ weighed the evi-
dence on an intra-subsection basis. See J.A. 544 ("The [ALJ] found that
while the existence of pneumoconiosis was not established pursuant to
20 C.F.R. § 718.202(a)(1)-(3), it was established by the medical opinion
evidence pursuant to 20 C.F.R. § 718.202(a)(4).").
2It often appears before this court that neither the physician-witness
nor the ALJ sufficiently distinguishes between medical and legal pneu-
moconiosis, a distinction that is imperative for proper resolution of this
type of case. In this instance, it was the coal companies’ expert witness,
Dr. Renn, who arguably failed in making the critical distinction. On
remand this distinction should be borne in mind, not simply by the ALJ,
but the witnesses on both sides of the dispute.
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B.
Consol also objects to the ALJ’s treatment of Dr. Tsai. Specifi-
cally, Consol asserts that the ALJ erred by inflating Dr. Tsai’s creden-
tials and by giving him special deference based solely on his status
as Held’s treating physician. Dr. Tsai was Held’s treating physician
for ten years. The ALJ noted that, as a treating physician, "generally
[Dr. Tsai’s] opinion would ordinarily be entitled to more weight."
J.A. 526. The ALJ proceeded to accord Dr. Tsai’s opinion "a great
deal of weight," id., because he had conducted ten annual examina-
tions of Held.
The ALJ’s treatment of Dr. Tsai was inconsistent with the law. In
Grizzle v. Pickands Mather and Co., 994 F.2d 1093 (4th Cir. 1993),
we clearly stated that "[n]either 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." Id. at 1097; see also Comp-
ton, 211 F.3d at 212 ("An ALJ may not discredit a physician’s opin-
ion solely because the physician did not examine the claimant."). That
statement is still true today. Thus, while Dr. Tsai’s opinion may have
been entitled to special consideration, it was not entitled to the great
weight accorded it by the ALJ.
The ALJ’s treatment of Dr. Tsai also deviated from the facts of this
case. The ALJ listed Dr. Tsai among the physicians with the best cre-
dentials. See J.A. 527 ("Of the six physicians providing post-1990
reports, Drs. Tsai, Jaworski, Renn, and Fino have the best credentials,
with Drs. Garson and Morgan, although having impressive creden-
tials, falling a tier below.").3 Drs. Jaworski, Renn, and Fino were all
B-readers who had specialty training in pulmonary medicine. While
Dr. Tsai is board certified in internal medicine, he has no specialty
training in pulmonary medicine and has no special radiological train-
ing reading x-rays. J.A. 514. His credentials do not compare to the
other top physicians, and the ALJ should not have listed him among
3Consol also argues that the ALJ erred by failing to properly evaluate
Dr. Morgan’s credentials. On remand, the ALJ should consider Dr. Mor-
gan’s extensive credentials, included in the record as Employer’s Exhibit
12.
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them as having comparable credentials. Even were it permissible to
accord a physician’s opinion greater weight simply due to his treating
status, which it is not, treating status would still be irrelevant when
considering the relative credentials of the various physicians.4
CONCLUSION
For the forgoing reasons, we vacate the order of the Board and
remand with instructions for the Board to remand the action to an ALJ
for further proceedings.
VACATED AND REMANDED
GREGORY, Circuit Judge, dissenting:
Consol disputes the ALJ’s determination that Arthur O. Held, a
coal miner for nearly forty years, is entitled to benefits under the
Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. There is no doubt
that Held suffers from severe, pulmonary-related illnesses. Medical
experts disagree, however, on the cause of his condition. Some doc-
tors believe that Held’s disability is due solely to his forty-year his-
tory as a pack-a-day smoker. Others conclude that both his smoking
and his decades of work in the coal mines are responsible.
In a thirty-seven page opinion, the ALJ considered all of the con-
flicting evidence, and found that Held suffered from pneumoconiosis
arising at least partly from his coal-mine employment. The U.S.
Department of Labor’s Benefits Review Board ("Board") affirmed
these findings as supported by substantial evidence in the record. Like
the Board, we review the ALJ’s findings of fact under the substantial
evidence standard. Because I believe that the majority misapplies this
standard, I respectfully dissent.
4In its brief, Consol also argued that 20 C.F.R. § 725.503(b) violates
section 7(c) of the Administrative Procedure Act because it allows the
claimant to recover benefits for a period of time for which no evidence
of entitlement exists. At oral argument, however, counsel for Consol
explicitly withdrew this challenge, and we therefore do not consider it.
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I.
While we review the Board’s and the ALJ’s conclusions of law de
novo, we review the ALJ’s factual findings under the more deferential
substantial evidence standard. Ante, at 3. The substantial evidence
standard is far more deferential than de novo; "it consists of more than
a mere scintilla of evidence but may be somewhat less than a prepon-
derance." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)(quoting
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). See also
Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 756 (4th Cir. 1999);
Staten v. Califano, 598 F.2d 328, 331 (4th Cir. 1979) ("Our scope of
review is confined to determining whether the Secretary’s decision
was supported by substantial evidence. We are not to try the case de
novo.") (internal citations omitted)).
In agency cases, the reviewing court should not substitute its judg-
ment for that of the ALJ. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990) ("Ultimately, it is the duty of the administrative law judge
reviewing a case, and not the responsibility of the courts, to make
findings of fact and to resolve conflicts in the evidence."). Specifi-
cally, in black lung cases, the ALJ as trier of fact "is not bound to
accept the opinion or theory of any medical expert." Underwood v.
Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997). Rather, his role
is to "evaluate the evidence, weigh it, and draw his own conclusions."
Id. In reviewing these conclusions, "We must sustain the ALJ’s deci-
sion, even if we disagree with it, provided the determination is sup-
ported by substantial evidence and thus, would be enough to justify
a refusal to direct a verdict in a jury trial." Smith v. Chater, 99 F.3d
635, 637-38 (4th Cir. 1996).
II.
I agree with the majority that the ALJ misapplied Fourth Circuit
law on two points. First, the ALJ incorrectly considered the x-ray evi-
dence and the physicians’ opinions separately, instead of weighing
these two types of evidence together. Second, the ALJ erred in con-
cluding that "generally" the opinion of a treating physician "would
ordinarily be entitled to more weight" than the opinions of other doc-
tors. J.A. at 526 (emphasis added).
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Of course, not every error committed by an ALJ is reversible error.
Jericol Mining, Inc. v. Napier, 301 F.3d 703 (6th Cir. 2002); Under-
wood, 105 F.3d at 949-50. In Jericol Mining, the ALJ inappropriately
gave "additional weight" to a coal miner’s primary treating physician.
301 F.3d at 710. Additionally, the ALJ "erred in attributing greater
weight to the opinion of [a second treating physician] simply because
he saw [the miner] more frequently than the other examining physi-
cians." Id. at 711. Having found these two errors of law, the Sixth Cir-
cuit nevertheless affirmed the ALJ’s ruling. The court explained:
[The coal company’s] central argument, when stripped to its
essentials, appears to be a quarrel with the ALJ’s credibility
determinations. But this court is required to defer to the
ALJ’s assessment of the physicians’ credibility. In light of
the entire record, we conclude that the ALJ’s findings were
based upon substantial evidence and therefore should be
affirmed.
Id. at 713-14 (internal citations omitted).
The analytical approach of the Jericol Mining court applies equally
well to the present case. Thus, before determining whether the ALJ’s
legal errors require reversal, we must review his findings of fact in
light of the entire record. If substantial evidence supports the ALJ’s
decision to rely on Dr. Tsai’s opinion and place less emphasis on the
x-ray evidence, then the ALJ’s and the Board’s decisions should be
affirmed. Id. at 711.
III.
A.
The majority initially finds fault with the ALJ’s conclusion that the
x-ray evidence was inconclusive, neither supporting nor defeating the
miner’s claim of CWP. The majority then suggests that the x-ray evi-
dence weighs heavily against a finding of coal worker’s pneumoconi-
osis. See ante, at 5. In so doing, the Court effectively embarks on a
de novo review of the ALJ’s findings of fact.
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The ALJ observed that, from 1976 to 1997, sixty-nine x-ray read-
ings were completed. J.A. at 525. While most of these readings were
negative, the ALJ found that the most important readings were the
two most recent, both of which were done in 1997. He noted, "Dr.
Fino’s 9/4/97 reading . . . was negative for CWP," while Dr. Garson
read the 1/22/97 x-ray as "positive for simple CWP." J.A. at 525-26.
The ALJ, therefore, concluded that "the two most important x-rays,
in 1997, appear contradictory. Thus, I cannot find the miner estab-
lished CWP through x-ray evidence alone." J.A. at 526.
Considering this evidence anew, I might find, as the majority
implies, that the x-rays weigh against a finding of CWP. After all,
only seven of the sixty-nine x-ray readings were positive for CWP.
See J.A. at 525. However, "We must sustain the ALJ’s decision, even
if we disagree with it, provided the determination is supported by sub-
stantial evidence. . . ." Smith v. Chater, 99 F.3d at 637-38. In this
case, "more than a mere scintilla of evidence" supports the ALJ’s con-
clusion that the x-ray evidence is inconclusive. See Mastro, 270 F.3d
at 176. The fact that the two most recent x-rays are in conflict is suffi-
cient to support the ALJ’s conclusion. This factual determination,
therefore, should be upheld.
B.
Unable to resolve the case on the x-ray evidence alone, the ALJ
turned to the testimony of the various physicians who considered the
miner’s condition.1 In reviewing this medical evidence, the ALJ found
that the opinions of three doctors — Drs. Tsai, Jaworski, and Garson
— supported a finding of CWP. In contrast, Drs. Fino, Renn, and
Morgan all advised against such a finding. As mentioned above, the
ALJ erred in stating that Dr. Tsai’s opinion would generally be enti-
tled to greater weight. In Milburn Colliery Co. v. Hicks, this Court
stated, "[A]n ALJ should not ‘mechanistically credit[ ], to the exclu-
sion of all other testimony,’ the testimony of an examining or treating
physician solely because the doctor personally examined the claim-
ant." 138 F.3d 524, 533 (4th Cir. 1998). However, a treating physi-
1As stated above, the ALJ erred in considering the physicians’ opin-
ions separately from the x-ray evidence. See Island Creek Coal Co. v.
Compton, 211 F.3d 203, 208 (4th Cir. 2000).
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cian’s opinion is entitled to "special consideration." Grizzle v.
Pickands Mather & Co., 994 F.2d 1093, 1097 (4th Cir. 1993) (abro-
gated on other grounds, Hicks, 138 F.3d at 530).2 In this case, after
evaluating the conflicting medical evidence, the ALJ reasonably con-
cluded that Dr. Tsai’s opinion was reliable, trustworthy, and therefore
entitled to "a great deal of weight." J.A. at 526.
The majority, however, states that "[t]he ALJ’s treatment of Dr.
Tsai also deviated from the facts of this case. . . . While Dr. Tsai is
board certified in internal medicine, he has no specialty training in
pulmonary medicine and has no special radiological training reading
x-rays." Ante, at 6. Thus, the majority finds that Dr. Tsai’s opinion is
less persuasive than the testimony of Drs. Jaworski, Renn, and Fino.
In reaching this conclusion, the majority again misapplies the "sub-
stantial evidence" standard of review. The additional training that Drs.
Renn, Jaworski, and Fino received is relevant, but it is not dispositive.
While the ALJ inappropriately concluded that Dr. Tsai’s reports
would generally be entitled to more weight, this does not mean that
a treating physician’s opinion can never be entitled to more weight.
When there is a conflict among the medical evidence, the ALJ is
encouraged to consider the specific facts of the case and decide which
physician’s opinion is entitled to the greatest weight. Underwood, 105
F.3d at 949.
Dr. Tsai has been Held’s regular treating physician since 1976. As
the ALJ noted, Dr. Tsai "conducted at least ten annual full pulmonary
evaluations and his opinion carries a great deal of weight." J.A. 526.
2The Grizzle court explained the distinction between "greater weight"
and "special consideration" as follows:
We have often stated that as a general matter the opinions of
treating and examining physicians deserve special consideration.
. . . [We have never held, however,] 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 phy-
sicians.
994 F.2d at 1097-98 (internal citations omitted).
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Like Drs. Renn and Fino, Dr. Tsai did his residency in internal medi-
cine. While Dr. Tsai did not do a post-residency fellowship in pulmo-
nary diseases, he does have considerable practical experience with
CWP. He has practiced as a general internist since 1975, with coal
miners making up twenty to forty percent of his patient population.
Much of his practice focuses on cardio-pulmonary problems. J.A.
196. In short, he has considerable experience in diagnosing and treat-
ing CWP.
In addition, Dr. Tsai’s opinion is buttressed by the conclusions of
Drs. Jaworski and Garson. Dr. Jaworski is board certified in internal
medicine, with sub-specialties in pulmonary diseases and critical care.
J.A. at 279. He is a "B" reader for chest x-rays. He examined Held
on May 16, 1996, and concluded that Held had a "multifactorial etiol-
ogy," with both cigarettes and coal dust playing a role in his illness.
J.A. at 299. Dr. Jaworski based his finding on "the presence of the air-
way obstruction and a significant history of exposure to coal dust."
J.A. at 301. He explained, "There’s no specific test that diagnoses
this. We’re basically relying on history, physical exam, and pulmo-
nary function testing." J.A. at 302.
Dr. Garson has sub-specialities in preventive medicine, public
health, and occupational medicine. He arguably has the most signifi-
cant experience in the field of pulmonary diseases of any of the physi-
cians offering opinions in this case.3 Dr. Garson examined Held in
1997, and concluded that Held suffered from severe chronic obstruc-
tive pulmonary disease, emphysema, and coal workers’ pneumoconi-
osis. He explained, "[T]he portion of his coal workers’
pneumoconiosis . . . caused by his underground coal mine employ-
ment [is supported by] his pulmonary function and breathing tests that
exceed the levels necessary for disability and compensation." J.A. at
341-42. Like Dr. Jaworski, Dr. Garson emphasized "that part of
3Dr. Garson explained, "I was sent by the United States Public Health
Services to the coal producing nations . . . to review the prevention of
coal workers’ pneumoconiosis underground in coal mining. I brought
back that information which was presented to Congress and was included
in the 1969 Act . . . involving protection of coal mine workers in this
country." J.A. at 329. In addition, Dr. Garson worked as the Medical
Director for the petitioner, Consol, for several years. J.A. at 328.
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[Held’s] problem is due to his coal workers’ pneumoconiosis, part is
due to his emphysema [from smoking], and it is not possible — we
have no testing mechanism to evaluate exactly how much. But clearly
both are at work. . . ."
In contrast to these conclusions, Drs. Fino, Renn, and Morgan
found there to be no evidence of CWP. The ALJ, however, reasoned
that the testimony of these doctors was "disingenuous." J.A. at 527.
For example, despite seeing thousands of patients over twenty-five
years, Dr. Renn has never diagnosed a patient with CWP absent a
positive x-ray, biopsy, or autopsy. The Department of Labor’s regula-
tions, however, state that "[a] determination of the existence of pneu-
moconiosis may also be made . . . notwithstanding a negative x-ray
. . . ." 20 C.F.R. § 718.202(a)(4).4 The regulations further explain, "No
claim for benefits shall be denied solely on the basis of a negative
chest x-ray." § 718.202(b). Therefore, the ALJ properly viewed Dr.
Renn’s analysis with suspicion.
Similarly, the ALJ discounted Dr. Morgan’s opinion because of a
perceived bias that was evident in Dr. Morgan’s written report. In that
report, Dr. Morgan dismissed, without explanation, evidence support-
ing a finding of CWP. For example, Dr. Morgan opines that Dr.
Jaworski’s analysis (finding CWP) was "based on tenuous evidence,"
but he does not explain why he reaches this conclusion. Instead, he
offers the conclusory explanation, "I do not find his argument com-
pelling." J.A. at 240. He then considers Dr. Renn’s finding that ciga-
rette smoke is solely responsible for Held’s problems, and notes
without elaboration, "I have a great regard for Dr. Renn." J.A. at 241.
When another physician, Dr. Fisher, interprets a chest x-ray to contain
some evidence of pneumoconiosis, Dr. Morgan outright dismisses
these findings: "I place little reliance on Dr. Fisher’s opinion." J.A.
at 243. After offering a blanket dismissal of any evidence that would
support a finding of CWP, Dr. Morgan summarily concludes that
4The majority observes that it is unclear from the record whether Dr.
Renn was referring to medical CWP or the broader category of legal
CWP. Ante, at 5 n.2. Thus, it is difficult to discern whether Dr. Renn’s
comments are hostile to the Act. The ALJ, however, is permitted to draw
reasonable inferences from Dr. Renn’s deposition. As the trier of fact, his
interpretation of Dr. Renn’s comments is entitled to some deference.
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there is "nothing to suggest" that Held’s illnesses are at least partially
attributable to coal mine dust. See J.A. at 238-48.
Dr. Fino testified in person before the ALJ, giving the ALJ a
unique opportunity to assess Dr. Fino’s credibility. The ALJ noted
that Dr. Fino receives ninety percent of his referrals from coal-
industry employers. J.A. at 520. He further questioned Dr. Fino’s tes-
timony that he finds CWP in only fifteen percent of the patients he
sees, and of that small percentage, only one fourth are diagnosed as
being "disabled" because of CWP. Id. The ALJ was particularly trou-
bled by these statistics because Dr. Fino did not find CWP in Held’s
case despite the fact that he "admitted that some of Mr. Held’s test
results approach consistency with CWP." J.A. at 527.
In the end, the ALJ’s factual findings, based on the evidence in the
record, should be upheld. Specifically, substantial evidence supports
the ALJ’s decision to give greater weight to the testimony of Dr. Tsai.
Similarly, the ALJ’s finding that the opinions of Drs. Fino, Morgan
and Renn were disingenuous is supported by substantial evidence.
Therefore, while this Court might reach a different conclusion if it
were reviewing the evidence de novo, we should not disturb these fac-
tual findings under the substantial evidence standard.
IV.
In summary, there is far more than a mere scintilla of evidence sup-
porting the ALJ’s findings of fact. Thus, the ALJ was justified in rely-
ing on Dr. Tsai’s opinion and in dismissing the opinions of Drs. Renn,
Fino, and Morgan, which were based almost exclusively on the incon-
clusive x-ray evidence. For these reasons, I dissent.
14 CONSOLIDATION COAL CO. v. HELD

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