Richard Sprague v. Director, Office of Workers’ Compensation Programs, United States Department of Labor

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 19, 2008
Decided February 9, 2009
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1574
RICHARD SPRAGUE,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR, and FREEMAN UNITED
COAL MINING COMPANY,
Respondents.
Petition for Review of an Order of the
Benefits Review Board, United States
Department of Labor.
No. 03‐BLA‐5980
ORDER
On this very day, 19 years ago, Richard Sprague, a former coal miner, filed a pro se
claim for black lung disability benefits. His claim was denied four months later. He filed
for benefits again in 2002 and his case is here now after it has gone back and forth before an
administrative law judge (ALJ) and the Department of Labor’s Benefits Review Board. And
with our decision today, the case still cannot be put to rest.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Sprague, who is now 81 years old, worked 24 years at a coal mine. He has also
smoked between a pack and a half a pack of cigarettes a day since he turned 18 in 1945. He
appeals the denial of benefits under the Black Lung Act, 30 U.S.C. § 921. Sprague no doubt
suffers from an obstructive lung disease that has totally disabled him, but Freeman United
Coal Mining Company, the coal mine operator responsible for any benefit payments that
may be awarded, contests whether Sprague’s disability stems from his employment as a
coal miner.
The parties agree that Sprague is totally disabled from a lung impairment and suffers
from chronic obstructive pulmonary disease (COPD), but to obtain benefits Sprague must
also prove that he is totally disabled by pneumoconiosis arising out of coal mine
employment. See 20 C.F.R. § 718.1(a); Consolidation Coal Co. v. Dir., Office of Workers’ Comp.
Programs, 521 F.3d 723, 725 (7th Cir. 2008). Sprague can prove that he has the clinical
form of pneumoconiosis, a disease in which inhaled coal dust damaged the lung tissue, see
20 C.F.R. § 718.201(a)(1), or he can establish legal pneumoconiosis, which is any other lung
disease related to or aggravated by coal dust, see 20 C.F.R. § 718.201(a)(2), (b). See also
Consolida‐ tion Coal, 521 F.3d at 725 n.1.
Freeman requested and received a hearing before an ALJ, contesting the Department
of Labor district director’s initial determination that Sprague was entitled to benefits. See 20
C.F.R. § 725.418. The ALJ considered a plethora of medical documents: ten readings of
three X‐rays done by six different doctors; five readings by five doctors of a single CT scan;
and doctors’ reports from both parties interpreting the X‐rays, CT scan, medical history,
occupational history, physical exam, and other medical tests. The ALJ found that none of
this evidence established either clinical or legal pneumoconiosis and denied benefits. In
reaching this decision, the ALJ discredited a report by Sprague’s primary expert, Dr. Robert
Cohen, a board‐certified pulmonary specialist and director of a black lung clinic, who
diagnosed Sprague with both clinical and legal pneumoconiosis. The ALJ thought that Dr.
Cohen’s report was “slanted” in Sprague’s favor, stating, for example, that Dr. Cohen
overstated Sprague’s exposure to coal mine dust but minimized his smoking history and
that Dr. Cohen relied selectively on certain medical reports. The ALJ, noting that Sprague
was exposed more to cigarette smoke than to coal dust and his condition worsened after he
stopped mining but continued smoking, concluded that it seemed “much more likely that
[Sprague’s] obstructive impairment is due to smoking rather than coal mining.”
Sprague appealed to the Benefits Review Board (BRB), which identified two
evidentiary errors: first, the ALJ admitted too many readings of the CT scan, and second,
the ALJ wrongly excluded a positive re‐reading of an X‐ray that Sprague had submitted to
rebut Freeman’s case. The BRB vacated the ALJ’s decision in part and instructed him on

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remand to reevaluate the X‐ray and CT‐scan evidence, to reconsider his determination that
Dr. Cohen understated Sprague’s smoking history, and to refrain from substituting his own
opinion for that of the medical experts.
On remand the ALJ again denied benefits. He admitted the positive re‐reading of
the X‐ray, but found that it did not affect his finding that the X‐ray evidence failed to
prove the existence of pneumoconiosis. He continued to discount Dr. Cohen’s report
because it was based in part on positive readings of the X‐ray and CT‐scan evidence that the
ALJ had determined were negative. The ALJ also continued to maintain that Dr. Cohen’s
opinion was flawed because it understated Sprague’s smoking history. Finally, the ALJ
denied that he was substituting his own opinion for that of the medical experts and claimed
instead that he was merely “exercising common sense”; he reasserted that Sprague’s
impairment was more likely due to smoking than coal mining.
Sprague appealed again to the BRB, but this time the panel split and the majority
found the ALJ’s decision supported by substantial evidence. The dissenting judge,
however, thought that the ALJ exhibited “obvious bias” against Sprague; failed to reweigh
the X‐ray evidence; mischaracterized Dr. Cohen’s medical opinion as to Sprague’s work
history, type of coal mine employment, and smoking history; continued to substitute his
own opinion for that of medical experts; and applied an incorrect legal standard by
assuming that Sprague’s impairment stemmed from only a single cause, rather than
determining whether it was “significantly related to, or substantially aggravated by, dust
exposure in coal mine employment” as directed by 20 C.F.R. § 718.201(a)(2).
On appeal to this court, Sprague contends that the ALJ harbored a personal belief
that Sprague did not suffer from pneumoconiosis and thus did not objectively weigh the
evidence. With regard to the X‐ray evidence, for example, Sprague argues that the ALJ
considered the qualifications of only some of the doctors and did not give valid reasons for
crediting the doctors that he did, possibly overlooking a positive X‐ray. Turning to the CT‐
scan evidence, Sprague argues that the ALJ did not follow the BRB’s instructions on remand
to exclude three of Freeman’s four CT‐scan readings and that he had no basis in the record
to conclude that Freeman’s doctors are more qualified to read CT scans than Dr. Cohen.
Finally, Sprague lists a litany of reasons why he believes that the ALJ erred when rejecting
Dr. Cohen’s medical reports that diagnosed clinical and legal pneumoconiosis. To begin, he
argues that the ALJ erred in rejecting Dr. Cohen’s diagnosis of clinical pneumoconiosis
based on an invalid analysis of the X‐ray evidence. Sprague also contends that the ALJ gave
Dr. Cohen’s opinion less weight because Dr. Cohen was Sprague’s chosen expert and that
the ALJ improperly substituted his own opinion for that of the medical experts. In addition,
Sprague argues that the ALJ made a legal error by not addressing whether Sprague’s lung

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1 B-readers are doctors who have demonstrated proficiency in recognizing which lung
opacities indicate pneumoconiosis, as opposed to another lung disease. See 20 C.F.R.
§ 718.202(a)(1)(ii)(E).
disease was cause in part by occupational exposure. Sprague asks that this case be
remanded to a different ALJ.
We review the ALJ’s decision to determine whether it is rational, supported by
substantial evidence, and consistent with controlling law. Stalcup v. Peabody Coal Co., 477
F.3d 482, 484 (7th Cir. 2007). We will not address each of Sprague’s claims of error because
we conclude that the ALJ’s treatment of the X‐ray evidence, his substitution of his opinion
for that of the medical evidence, and his failure to address whether coal mining contributed
to Sprague’s lung impairment are sufficient to vacate and remand the entire case.
Because clinical pneumoconiosis is caused by deposits of coal dust in the lungs, the
presence of the disease can sometimes be seen in an X‐ray as opacities in the lungs.
Evaluating the significance of X‐ray readings submitted by the parties is a task that falls to
an ALJ. See Mullins Coal Co., Inc. v. Dir., Office of Workers’ Comp. Progs., 484 U.S. 135, 148‐49
(1987) (“[T]he ALJ must weigh conflicting interpretations of the same X‐ray in order to
determine whether it tends to prove or disprove the existence of pneumoconiosis.”). If an
X‐ray generates conflicting readings, an ALJ may give greater weight to an interpretation by
a doctor with superior credentials. See 20 C.F.R. § 718.202(a)(1); Zeigler Coal Co. v. Dir., Office
of Workers’ Comp. Programs, 326 F.3d 894, 899 (7th Cir. 2003); Old Ben Coal Co. v. Battram, 7
F.3d 1273, 1276 (7th Cir. 1993). Thus, if one doctor is a B‐reader1 and another is dual‐
qualified as a B‐reader and a board‐certified radiologist, the ALJ may accept the conclusion
of the dual‐qualified doctor. If the doctors, however, are equally qualified, then an ALJ may
look beyond the readings to other relevant evidence, such as the ages of different X‐rays or
the persuasiveness of the doctors’ reports. See Old Ben Coal, 7 F.3d at 1277‐78.
The ALJ may not, however, count the number of opinions in support of and against a
pneumoconiosis diagnosis and just choose the party having more medical opinions in its
favor. See Stalcup, 477 F.3d at 484. Similarly, the ALJ may not automatically side with the
party retaining better‐qualified doctors to read the X‐rays but must come to a conclusion
about the probativeness of each underlying X‐ray. See Cook v. Dir., Office of Workers’ Comp.
Programs, 816 F.2d 1182, 1185 (7th Cir. 1987) (“Under the regulation it is not the reading, but
the x‐ray, that establishes the presumption [of pneumoconiosis].”); 20 C.F.R. § 718.202(a)(1)
(“A chest X‐ray . . . may form the basis for a finding of the existence of pneumoconiosis.”).
Only after examining the probative value of each individual X‐ray can the ALJ come to a

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reasoned conclusion about whether the X‐ray evidence as a whole proves the existence of
pneumoconiosis.
Here the ALJ failed to resolve the conflicting interpretations of each X‐ray and con‐
cluded that the X‐ray evidence did not establish the presence of pneumoconiosis without
first considering the qualifications of each doctor who read the X‐rays. Based on a
comparison of the qualifications of the doctors who read the 1999 X‐ray, the ALJ concluded
that the X‐ray did not tend to establish the presence of pneumoconiosis; however, he carried
out no such comparison for either the 2002 or 2003 X‐ray. For example, Dr. Afzal Ahmed
and Dr. Alan Repsher gave conflicting interpretations of the 2003 X‐ray, but the ALJ did not
determine which doctor was more qualified. Moreover, the ALJ inexplicably compared the
qualifications of Dr. Cohen and Dr. Repsher, two doctors who never read the same X‐ray,
but such a comparison adds nothing unless those experts read the same X‐ray.
The ALJ also impermissibly substituted his own opinion for that of the medical
experts by concluding‐‐without citing to any doctor’s report‐‐that Sprague’s lung
impairment was more likely due to smoking, and not coal mining. See Zeigler Coal Co. v.
Kelley, 112 F.3d 839, 841 (7th Cir. 1997). The cause of Sprague’s disease is a medical
determination, which depends on his medical history, the particular nature of any opacities
in his lungs, and his exposure to cigarette smoke and coal mine dust. Cf. Compton v. Inland
Steel Coal Co., 933 F.2d 477, 482‐83 (7th Cir. 1991) (noting that cause of miner’s total
disability is medical, not legal, determination). Instead of relying on his own “common
sense,” the ALJ should have determined whether Dr. Cohen’s report diagnosing
pneumoconiosis was more or less credible than the doctors who did not diagnose
pneumoconiosis. See Ziegler Coal Co. v. Office of Workers’ Comp. Progs., 490 F.3d 609, 616‐17
(7th Cir. 2007).
Furthermore, in supporting his conclusion, the ALJ assumed that COPD is caused
less frequently by coal dust exposure than by smoking, but that assumption is not
supported by substantial evidence. The ALJ apparently misunderstood the significance of
certain studies cited by Dr. Cohen: the ALJ interpreted Dr. Cohen’s review of the studies
about coal dust exposure to mean that COPD is caused less frequently by coal dust
exposure than by smoking, but Dr. Cohen regarded exposure to coal dust to be as
significant as exposure to smoking. What’s more, the ALJ may have erred by overrelying
on an unsubstantiated statistic from a report by one of Freeman’s experts—that “1 in 5
heavy cigarette smokers will develop COPD, whereas less than 1 in 100 never‐smoking coal
miners develop COPD.” This statistic seems to conflict with findings by the Department of
Labor showing that coal mining exposure is similar to cigarette smoking in contributing to
chronic bronchitis and emphysema, two obstructive lung diseases. See 65 F.R. 79920, 79937‐

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45 (refuting claims that coal mine dust does not cause obstructive lung disease); see also
Consolidation Coal, 521 F.3d at 726 (“The medical authority indicates that nonsmoking
miners develop moderate and severe obstruction at the same rate as smoking miners.”).
In addition, when the ALJ concluded that Sprague’s COPD was due to smoking, he
also made a legal error by not addressing whether Sprague’s COPD was “significantly
related to, or substantially aggravated by, dust exposure in coal mine employment.” 20
C.F.R. § 718.201(a)(2), (b). Even if Sprague’s smoking contributed to his COPD, he is still
entitled to benefits if mining also contributed to it. See Midland Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 358 F.3d 486, 494‐96 (7th Cir. 2004); Shelton v. Dir., Office of
Workers’ Comp. Programs, 899 F.2d 690, 693 (7th Cir. 1990).
Finally, Sprague asks for a different ALJ on remand based on the ALJ’s apparent bias
against Sprague’s claim. We agree and urge the Director to assign a new ALJ to take a fresh
look at the evidence. See Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003); Sarchet v.
Chater, 78 F.3d 305, 309 (7th Cir. 1996).
The BRB’s order is VACATED and the case is REMANDED for further proceedings.

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