061662.U

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1662
UNITED STATES STEEL MINING COMPANY, LLC,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS; MARVELLA K. COOPER, widow of Forest
P. Cooper,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-0825-BLA)
Argued: September 27, 2007 Decided: November 2, 2007
Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Samuel G. WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.
Petition for review granted; order vacated by unpublished per
curiam opinion.
Howard Gerald Salisbury, Jr., KAY, CASTO & CHANEY, P.L.L.C.,
Charleston, West Virginia, for Petitioner. James Morrison
Haviland, PYLES, HAVILAND, TURNER & SMITH, L.L.P., Charleston, West
Virginia, for Respondents.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
United States Steel Mining Co. (“U.S. Steel”) petitions for
review of the Benefits Review Board’s (“BRB”) order affirming the
administrative law judge’s (“ALJ”) award of survivor’s black lung
benefits to Marvella K. Cooper, widow of Forest P. Cooper. Because
we conclude that the ALJ’s decision is not supported by substantial
evidence, we grant the petition and vacate the award of benefits.
I
Forest P. Cooper worked for U.S. Steel as a coal miner for
approximately 25 years. Following his coal mine employment, Mr.
Cooper suffered from simple coal workers’ pneumoconiosis. Mr.
Cooper also smoked between one-half and one pack of cigarettes per
day from 1982 until his death. During the last year of his life,
he was diagnosed with metastatic renal cell carcinoma, which spread
into his lungs and resulted in his death in 2002.
Following Mr. Cooper’s death, Mrs. Cooper filed an application
for survivor’s black lung benefits pursuant to the Black Lung
Benefits Act, 30 U.S.C. § 901 et seq. In order to obtain
survivor’s benefits, Mrs. Cooper was required to prove that (1) Mr.
Cooper had pneumoconiosis; (2) the pneumoconiosis arose out of coal
mine employment; and (3) Mr. Cooper’s death was due to
pneumoconiosis. 20 C.F.R. § 718.205. An individual’s death is
“due to” pneumoconiosis if the pneumoconiosis substantially

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contributed to and/or hastened his death. See 20 C.F.R. §
205(c)(2), (4), (5).
The ALJ concluded that Mrs. Cooper had satisfied her burden of
proof on the existence of pneumoconiosis and that Mr. Cooper’s
pneumoconiosis arose out of his coal mine employment. U.S. Steel
does not challenge these findings on appeal. However, U.S. Steel
does challenge the ALJ’s conclusion that pneumoconiosis
substantially contributed to or hastened Mr. Cooper’s death.
II
We review decisions of the BRB to determine whether the BRB
properly found that the ALJ’s decision is supported by substantial
evidence and is in accordance with law. Consolidation Coal Co. v.
Held, 314 F.3d 184, 186 (4th Cir. 2002). In making this
determination, we undertake an independent review of the record to
decide whether the ALJ’s findings are supported by substantial
evidence. Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir.
1995). Substantial evidence is more than a scintilla, but only
such evidence that a reasonable mind could accept as adequate to
support a conclusion. Lane v. Union Carbide Corp., 105 F.3d 166,
170 (4th Cir. 1997) (internal quotation and citation omitted).
Subject to the substantial evidence requirement, an ALJ has
the sole authority to make credibility determinations and resolve
inconsistencies or conflicts in the evidence. Grizzle v. Pickands

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Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993) (internal
quotation and citation omitted). However, an ALJ must perform the
gate-keeping function of qualifying evidence as “reliable,
probative, and substantial” before relying upon it to grant or deny
a claim. United States Steel Mining Co. v. Dir., Office of
Workers’ Comp. Programs, 187 F.3d 384, 389 (4th Cir. 1999). An ALJ
must evaluate the quality of medical opinions by considering “the
qualifications of the experts, the opinions’ reasoning, their
reliance on objectively determinable symptoms and established
science, their detail of analysis, and their freedom from
irrelevant distractions and prejudices.” Underwood v. Elkay
Mining, Inc., 105 F.3d 946, 951 (4th Cir. 1997).
III
U.S. Steel argues that the ALJ’s conclusion that Mr. Cooper’s
death was due to pneumoconiosis is not supported by substantial
evidence. In reaching his conclusion, the ALJ relied on the
“Reasoned Medical Opinion” of Dr. Ward, who is a Doctor of
Osteopathy and Family Practitioner, and who was Mr. Cooper’s
primary treating physician from 1993 until his death. In his
opinion, Dr. Ward stated:
I had listed the cause of death [on Mr. Cooper’s death
certificate] as metastatic renal cell carcinoma. I had
also listed coal worker’s pneumoconiosis as a
contributing cause to his death. I based that on the
clinical course of his illness after his tumor was
diagnosed in March of 2002. Following the diagnosis of

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the tumor, the patient experienced a rapid downhill
course. During his last days, Mr. Cooper suffered from
severe respiratory symptoms including severe dyspnea and
respiratory distress in May of 2002. He was hospitalized
for these symptoms. At that time, he was started on
continuous oxygen therapy. During the last few days of
his life, Mr. Cooper was treated by me in a Hospice
setting. Throughout his last days, he suffered from
severe respiratory distress and severe dyspnea. It is my
opinion that the terminal event in his illness was
respiratory failure secondary to severe lung disease.
This lung disease at his death was largely due to tumors
replacing his lung, but I feel that his chronic long-
standing lung disease caused by coal worker’s
pneumoconiosis was a contributing factor to his death.
In conclusion, I feel that it is entirely reasonable to
state that Mr. Cooper’s coal worker’s pneumoconiosis
contributed materially to his death, shortened his life,
and hastened the process of his demise.
J.A. 261.
The ALJ considered and rejected the contrary report of Dr.
Bush, a board-certified pathologist. After examining Mr. Cooper’s
autopsy report and other medical records, Dr. Bush opined:
[Mr. Cooper’s death] resulted from renal cell carcinoma
widely spread by direct extension into the liver and
surrounding renal tissues, lymphatic invasion of lymph
nodes and hematogenous spread to lungs and possibly other
organs. This extent of malignant disease would have
ended in death at the same time and in the same manner if
the lungs were totally free of coal mine dust and were
perfectly normal. I disagree with the opinion of Dr.
Ward who treated Mr. Cooper in the last decade of life.
Mr. Cooper reportedly had chronic lung disease but this
was attributable to a significant cigarette smoking
history, under-reported as one-half pack per day by Dr.
Ward. Other records show one pack per day. The fact
that smoking continued even when death was imminent
suggests a serious smoking habit resulting in emphysema
observed at autopsy and responsible for symptoms prior to
metastatic carcinoma. The abnormal chest x-rays
attributed to coal mine dust exposure early in the
medical history are proven not significant at autopsy.
Mr. Cooper had severe pulmonary symptoms in the weeks and

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months prior to death as a result of the massive invasion
of the lungs by carcinoma producing hemoptysis, abnormal
chest x-rays, and respiratory insufficiency. The limited
extent of the coal mine dust disease at autopsy cannot be
considered causally related to death with any degree of
reasonable medical certainty.
Id. at 262.
The ALJ also considered the testimony of Dr. Walker, chairman
of the West Virginia Occupational Pneumoconiosis Board. Dr. Walker
testified that Mr. Cooper’s pneumoconiosis did not contribute to
his death in any way:
I think [Dr. Ward is] not making a reasonable evaluation
of the medical evidence. . . . when an individual has a
carcinoma that originated in another part of the body
with multiple metastatic lesions with the chest, even to
the heart and to the chest wall, that patient is dying of
cancer of the primary tumor, which was a carcinoma of the
kidney. To carry Dr. Ward’s opinion, any individual
having any diagnosis of occupational pneumoconiosis and
he died of any other cause, it would be a material
contributing factor. Dr. Ward’s opinion in this
particular case is not consistent with the medical facts,
and I don’t think it’s consistent with the practice of
the medical community today. I don’t think you can
really find anyone who is doing this type of work that
would accept Dr. Ward’s opinion. I think he’s just
totally, totally wrong.
Id. at 263.
Although he acknowledged that Drs. Bush and Walker had
superior qualifications, the ALJ nonetheless credited the opinion
of Dr. Ward. The ALJ emphasized that Dr. Ward was Mr. Cooper’s
treating physician and that Mr. Cooper had experienced respiratory
problems during life, concluding that Dr. Ward’s opinion was “most
consistent with Mr. Cooper’s history and the medical data in

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evidence.” Id. at 265. We disagree with the ALJ’s conclusion.
The fact that Mr. Cooper worked in coal mines and suffered from
respiratory problems during life does not support the conclusion
that pneumoconiosis contributed to his death.
The only evidence in the record linking Mr. Cooper’s
pneumoconiosis to his death is the written opinion of Dr. Ward. We
conclude that this opinion is not substantial evidence on which the
ALJ was permitted to rely. Dr. Ward’s opinion is not a reasoned
medical judgment, but consists only of conclusory statements with
no explanation of the reasoning that led to the conclusion.
Indeed, the only support offered for Dr. Ward’s conclusion is his
statement that Mr. Cooper suffered respiratory problems in the days
leading to his death. However, there is no dispute that Mr. Cooper
suffered from renal cancer that spread aggressively into his lungs
at the end of his life. Dr. Ward offers no explanation as to why
he concluded that pneumoconiosis, rather than the cancer which was
overtaking Mr. Cooper’s lungs, was the cause of these breathing
difficulties.
In the absence of any explanation for Dr. Ward’s belief that
pneumoconiosis, rather than cancer, was responsible for Mr.
Cooper’s end-of-life respiratory problems, Dr. Ward’s opinion does
nothing more than state a conclusion. Accordingly, the ALJ
improperly relied on Dr. Ward’s opinion in awarding benefits.
Because the ALJ’s decision is not supported by substantial

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evidence, we grant the petition for review and vacate the award of
benefits.
PETITION FOR REVIEW GRANTED;
ORDER VACATED

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