PART IV

               ADMINISTRATIVE PROCESSING OF CLAIMS,
        POWERS AND DUTIES OF THE ADMINISTRATIVE LAW JUDGE


D.   EVALUATION AND WEIGHING OF EVIDENCE

     2.  ELEMENTS OF ENTITLEMENT

          e.  Cause of Disability and Pneumoconiosis

     In determining the etiology of a miner's respiratory impairment or pneumoconiosis,
the administrative law judge must consider and weigh all relevant evidence.  Medical
opinions that fail to establish whether the total disability was due to respiratory or non-respiratory causes or some combination of both may be held insufficient to establish total
disability due to pneumoconiosis. Centak v. Director, OWCP, 6 BLR 1-1072 (1984).  An opinion on the etiology of a miner's emphysema that is based on general
medical studies rather than the particular circumstances of the miner's condition may also
be rejected. See generally Sainz v. Kaiser Steel Corp., 5 BLR 1-758, 1-762 (1983), aff'd sub nom. Kaiser Steel Corp. v. Director, OWCP, 748
F.2d 1426, 7 BLR 2-84 (10th Cir. 1984).

     The administrative law judge may properly consider the total picture of the miner's
circumstances when evaluating the probative value of medical opinions.  S/he may
discredit reports that fail to account for, or adequately consider the significance of, a
lengthy smoking history while attributing respiratory impairment to coal mine employment. 
Bobick v. Saginaw Mining Co., 13 BLR 1-52 (1988); Stark v.
Director, OWCP, 9 BLR 1-36 (1986); Maypray v. Island Creek Coal
Co., 7 BLR 1-683 (1985).  The adjudicator may also reject an opinion on causation
where the physician failed to account for significant non-coal mine work under dusty
conditions. See, e.g., Tucker v. Director, OWCP, 10 BLR
1-35 (1987); Long v. Director, OWCP, 7 BLR 1-254 (1984);
Collura v. Director, OWCP, 6 BLR 1-100 (1983).  Similarly, a physician's
unfamiliarity with the miner's employment duties, or other medical conditions may provide
reason for giving the physician's opinion as to cause of disability less weight. See
Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc);
Cooper v. United States Steel Corp., 7 BLR 1-842 (1985);
Markatan v. Jones & Laughlin Steel Corp., 6 BLR 1-940 (1984).

     A physician's conclusion based on an erroneous assumption regarding length of
coal mine employment may properly be accorded less weight. Long v. Director,
OWCP, 7 BLR 1-254 (1984); Hunt v. Director, OWCP, 7 BLR 1-709 (1985); Crosson v. Director OWCP, 6 BLR 1-809 (1984);
Maggard v. Director, OWCP, 6 BLR 1-285 (1983); cf.
McMath v. Director, OWCP, 12 BLR 1-6 (1988); Smith v.
Director, OWCP, 12 BLR 1-156 (1989); Hucker v. Consolidation Coal
Co., 9 BLR 1-137 (1986); Rickey v. Director, OWCP, 7 BLR 1-106 (1984); Baker v. Director, OWCP, 6 BLR 1-976 (1984).  Likewise, an
opinion based upon an incorrect or inaccurate knowledge of the miner's overall work
history may also be discounted. See Piniansky v. Director, OWCP, 7 BLR
1-171 (1984).

     An opinion as to the etiology of respiratory impairment must be expressed in a
sufficiently clear and definite manner in order to be persuasive evidence of causation. 
Where an opinion on causation is qualified and uncertain, it may rationally be discredited. 
Justice v. Island Creek Coal Co., 11 BLR 1-91 (1988); Campbell
v. Director, OWCP, 11 BLR 1-16 (1987); Carpeta v. Mathies Coal
Co., 7 BLR 1-145 (1984).

     An administrative law judge has the discretion to reject a causation opinion
expressed only by check mark. See, e.g., Perry v. Director,
OWCP, 9 BLR 1-1 (1986); Bray v. Director, OWCP, 6 BLR 1-400
(1983); Crosson v. Director, OWCP, 6 BLR 1-809 (1984); cf. Hall
v. Director, OWCP, 12 BLR 1-133 (1989), modified on recon., 14 BLR 1-1
(1989); Crytser v. Christopher Coal Co., 6 BLR 1-518 (1983).

     Finally, the issue of whether claimant's disability arose from coal mine employment
is primarily a medical determination, and accordingly, must be supported by medical
evidence. Salyers v. Director, OWCP, 12 BLR 1-193 (1989);
Cooper v. United States Steel Corp., 7 BLR 1-842 (1985).



                CASE LISTINGS

[lay testimony not enough to prove causation where only medical evidence of record does
not link pulmonary impairment to coal mine employment] Robinson v. Director,
OWCP, 3 BLR 1-798.5 (1981).

[adjudicator's speculation that respiratory impairment could have been caused by post
coal-mine work rejected as not supported by  medical evidence] Tollis v. Director,
OWCP, 5 BLR 1-320 (1982).

[proper to consider employment history regarding causality where record contains evidence
of occupational exposure in non-coal mine employment that could account for respiratory
problems]   Howell v. Director, OWCP, 6 BLR 1-504 (1983).

[adjudicator properly rejected medical finding that pulmonary disease arose out of coal
mine employment in view of the miner's smoking history, brief period of coal mine
employment and interval between onset of chest disease and that employment]
Mullins v. Director, OWCP, 6 BLR 1-508 (1983).

[equivocal medical opinion on causation may properly be accorded no weight by
adjudicator] Spradlin v. Island Creek Coal Co., 6 BLR 1-716 (1984);
see Justice v. Island Creek Coal Co., 11 BLR 1-91 (1988);
Campbell v. Director, OWCP, 11 BLR 1-16 (1987); Carpeta v.
Mathies Coal Co., 7 BLR 1-145 (1984).

[adjudicator properly discredited medical opinions of causation where based on incorrect
length of coal mine employment and missing critical information as to medical and work
history] Crosson v. Director, OWCP, 6 BLR 1-809 (1984).

[fact-finder reasonably found that doctor unfamiliar with miner's employment duties could
not render reliable opinion relating pathological findings and work duties to determine
causation] Markatan v. Jones and Laughlin Steel Corp., 6 BLR 1-940
(1984).

[adjudicator erroneously refused to credit a medical opinion regarding the cause of
claimant's pneumoconiosis where the opinion was based on an employer's letter that
claimant's non-coal mine formica work entailed no harmful exposure] Hall v.
Director, OWCP, 6 BLR 1-952 (1984)(Clark, J., dissenting).

[adjudicator may properly find doctor's incorrect assumption of length of coal mine
employment does not detract from credibility in linking pneumoconiosis and emphysema
to this employment, especially in absence of contrary evidence] Baker v. Director,
OWCP, 6 BLR 1-976 (1984).

[adjudicator properly found medical report that did not establish whether total disability due
to respiratory or non-respiratory causes was insufficient to prove causation] Centak
v. Director, OWCP, 6 BLR 1-1072 (1984).

[adjudicator properly credited causality opinion despite discrepancy between doctor's
assumption of ten years of coal mine employment and finding of six years as it was only
"small difference"] O'Neal v. Director, OWCP, 6 BLR 1-1132 (1984).

[evidence that mine accident, resulting in 75 percent workers' compensation award, may
have caused disability insufficient for subsection (b)(2) rebuttal as it only demonstrates
possibility of multiple causes, and does not exclude pulmonary or respiratory impairment]
Inman v. Peabody Coal Co., 6 BLR 1-1249 (1984).

[where medical diagnoses contained in record, fact-finder may not speculate regarding
causation based on claimant's testimony concerning breathing problems] Foster
v. National Mines Corp., 6 BLR 1-1255 (1984).

[work history valuable tool in determining etiology of impairment; fact-finder, believing in
"synergistic" relationship between smoking and coal dust exposure, erred in rejecting
medical opinion that smoking caused impairment where record contained no evidence of
synergistic relationship] Hall v. Consolidation Coal Co., 6 BLR 1-1306
(1984).

[adjudicator erroneously concluded "disability of the miner and the cause of death arose
from a combination of coronary and cerebralvascular [sic] problems" because
determination of causation not supported by medical evidence] Stritz v. Director,
OWCP, 7 BLR 1-9 (1984).

[discrepancy between six or seven years of coal mine employment as found by adjudicator
and eleven years assumed by doctor not so significant that it would clearly affect the
weight given that causality opinion] Rickey v. Director, OWCP, 7 BLR 1-106 (1984).

[adjudicator properly rejected opinions regarding causation based on inaccurate work
histories where doctor failed to mention 28 years exposure to freon gas and acetylene
torch fumes] Piniansky v. Director, OWCP, 7 BLR 1-171 (1984).

[adjudicator properly found causality where one doctor unsure but two other doctors
unequivocally found coal mine employment was the cause] Saunders v. Director,
OWCP, 7 BLR 1-186 (1984).

[adjudicator's inference that post-mining exposure to industrial pollutants is exclusive and
intervening source of his disability is improper where doctor diagnoses pneumoconiosis
and also indicates afflictions with numerous respiratory diseases arising from several
sources] Burt v. Director, OWCP, 7 BLR 1-197 (1984).

[adjudicator properly found no causation where medical reports attributed disability to other
sources, stated disability was not related to coal mine employment, or were silent on issue
of causation] Chancey v. Consolidation Coal Co., 7 BLR 1-240 (1984).

[potential causative factors of respiratory impairment other than coal mine employment or
discrepancy between doctor's assumption of length of covered employment and
adjudicator's finding may affect weight to be given regarding causality in assessing
credibility of medical opinion] Long v. Director, OWCP, 7 BLR 1-254
(1984).

[claimant's testimony cannot support causality finding where it could have arisen from other
sources of irritants] Jones v. Director, OWCP, 7 BLR 1-279 (1984);
Long v. Director, OWCP, 7 BLR 1-254 (1984); Collura v.
Director, OWCP, 6 BLR 1-100 (1983).

[adjudicator properly discredited reports of examining physicians who failed to consider
significance of thirty-year history of cigarette smoking in attributing impairment to coal mine
employment] Maypray v. Island Creek Coal Co., 7 BLR 1-683 (1985).

[may properly reject opinion relevant to causality where based on incorrect assumption of
length of coal mine employment] Hunt v. Director, OWCP, 7 BLR 1-709
(1985); Maggard v. Director, OWCP, 6 BLR 1-285 (1983).

[determination whether disability arose from coal mine employment primarily medical
determination that must be supported by medical evidence] Cooper v. United
States Steel Corp., 7 BLR 1-842 (1985).

[adjudicator properly discredited medical opinion of totally disabling coal workers'
pneumoconiosis based on eighteen year period of hauling coal for which claimant received
no credit] Oggero v. Director, OWCP, 7 BLR 1-860 (1985); see
also Long v. Director, OWCP, 7 BLR 1-254 (1984).

[adjudicator must consider non-covered coal dust exposure when determining causality] 
Hutchens v. Director, OWCP, 8 BLR 1-16 (1985).

[adjudicator may rationally conclude that pneumoconiosis did not arise out of coal mine
employment where twelve years of a total of seventeen years, five months, of coal dust
exposure took place in non-coal mine employment] Foster v. Director,
OWCP, 8 BLR 1-188 (1985).

[fact-finder cannot reject medical opinions concerning etiology of respiratory impairment
merely because based in part on negative x-ray when x-ray evidence is not overwhelmingly
positive] Moore v. Dixie Pine Coal Co., 8 BLR 1-334 (1985).



                   DIGESTS

The Board held that where the administrative law judge had properly credited a physician's
diagnosis of pneumoconiosis, the administrative law judge did not err in rejecting another
physician's opinion on causation because its underlying premise, that the miner did not
have pneumoconiosis, was inaccurate. Trujillo v. Kaiser Steel Corp., 8
BLR 1-472 (1986).

The Board affirmed the administrative law judge's finding that claimant, with fewer than ten
years coal mine employment, failed to prove by competent evidence that his
pneumoconiosis arose out of coal mine employment pursuant to Section 718.203(c).  The
administrative law judge rationally gave little weight to claimant's testimony because he
believed claimant exaggerated the amount of dust exposure in his coal mine employment
and minimized it in his twenty years construction work.  The administrative law judge also
rationally credited the better reasoned and documented medical opinion which diagnosed
conditions unrelated to coal mine employment. Stark v. Director, OWCP,
9 BLR 1-36 (1986).

Administrative law judge improperly substituted her opinion for that of a physician when the
administrative law judge rejected doctor's report because it was based in part on doctor's
view that claimant's 7.5 years of exposure to coal dust was short and she did not believe
that 7.5 years was short. Hucker v. Consolidation Coal Co., 9 BLR 1-137
(1986).

Administrative law judge improperly rejected doctor's opinion based on discrepancy in
length of coal mine employment as there was no significant difference between either the
7.5 years, or the 7 years, 5 months, found by the administrative law judge and the 7 years
relied upon by the doctor. Hucker v. Consolidation Coal Co., 9 BLR 1-137 (1986).

Administrative law judge erred in concluding that claimant proved that his pneumoconiosis
arose out of coal mine employment as the record contains no medical evidence relating
claimant's pneumoconiosis to dust exposure during coal mine employment and the
administrative law judge could not reasonably infer a relationship based merely upon
claimant's employment history. Baumgartner v. Director, OWCP, 9 BLR
1-65 (1986).

Administrative law judge erred in finding that claimant established totally disabling
pneumoconiosis since the only medical report of record attributes claimant's disability to
heart disease. Baumgartner v. Director, OWCP, 9 BLR 1-65 (1986).

Administrative law judge incorrectly held that single medical report diagnosing total
disability was insufficient to establish total disability because of the existence in the record
of contrary probative evidence.  Rather, all evidence relevant to the question of total
disability due to pneumoconiosis is to be weighed, with claimant bearing the burden of
establishing this element by a preponderance of the evidence. Mazgaj v. Valley
Camp Coal Co., 9 BLR 1-201 (1986).

The Sixth Circuit held that, in a survivor's case, lay evidence alone may be sufficient to
support a finding of a totally disabling respiratory impairment. Rapier v. Secretary
of Health and Human Services, 808 F.2d 456, 9 BLR 2-191 (6th Cir. 1986);
see also Dobbins v. Schweiker, 641 F.2d 1354, 3 BLR 2-9 (9th Cir.
1981).

Remand was required where administrative law judge failed to discuss medical opinion,
which if fully credited, could constitute competent evidence to establish causal nexus
pursuant to Section 718.203(c). Tucker v. Director, OWCP, 10 BLR 1-35
(1987).

Administrative law judge acted within his discretion in rejecting doctor's reports as doubtful
and insufficient to support a finding that claimant's pneumoconiosis arose out of coal mine
employment. Campbell v. Director, OWCP, 11 BLR 1-16 (1987).

Administrative law judge could properly discredit doctor's opinion regarding causation due
to its equivocal nature. Justice v. Island Creek Coal Co., 11 BLR 1-91
(1988).

Disparity of 4 years in length of coal mine employment credited by administrative law judge
and that relied upon by physician not so significant as to affect weight given to the
physician's report. McMath v. Director, OWCP, 12 BLR 1-6 (1988).

Administrative law judge's failure to note and discuss physician's assumption of 14 years
of coal mine employment, as opposed to his own finding of 8.25 years, is harmless in this
case, as there is no evidence in the record to suggest any causal factors other than coal
dust exposure in the development of claimant's respiratory impairment. Smith v.
Director, OWCP, 12 BLR 1-156 (1989).

Administrative law judge did not err by finding that claimant had not established that
pneumoconiosis caused his total respiratory disability under Section 718.204 based on one
doctor's report which specifically stated that claimant's condition was not due to his coal
mine employment and on the other doctor's report which did not attribute claimant's total
respiratory disability solely to coal workers' pneumoconiosis in view of the additional
diagnosis of status post-laryngectomy. Salyers v. Director, OWCP, 12
BLR 1-193 (1989).

Administrative law judge did not err by failing to credit claimant's lay testimony since the
administrative law judge properly discredited the only medical evidence of record which
could have established claimant's burden of proving that pneumoconiosis caused his total
respiratory disability under Section 718.204.  The uncorroborated lay evidence therefore
may not satisfy claimant's burden of proof on this issue. Salyers v. Director,
OWCP, 12 BLR 1-193 (1989).

Administrative law judge properly finds medical report less persuasive in view of a
significant discrepancy between the smoking history relied upon in the medical report and
that to which claimant testified at the hearing. Bobick v. Saginaw Mining
Co., 13 BLR 1-52 (1988).

In an en banc decision, the majority held that the administrative law judge properly
determined  that the biopsy findings, which include diagnoses of "subpleural fibrosis with
anthracosis" and "perivascular anthracosis," with associated disease process, fall within
the regulatory definition of "pneumoconiosis" provided at 20 C.F.R. §718.201,
notwithstanding the fact that there is no medical evidence linking these diagnoses to
claimant's coal mine employment.  The majority thereby adopted the Director's position
that the etiology of claimant's conditions diagnosed on biopsy is properly considered not
pursuant to the regulation at 20 C.F.R. §718.202(a), but pursuant to the regulation
at 20 C.F.R. §718.203.  The majority also held that the administrative law judge's
determination that the biopsy findings support a finding of the existence of
pneumoconiosis, is consistent with the decision of the United States Court of Appeals for
the Fourth Circuit in Clinchfield Coal Co. v. Fuller, 180 F.3d 622, 21 BLR
2-654 (4th Cir. 1999). Hapney v. Peabody Coal Co.,      BLR      , BRB
No. 00-0336 BLA (June 29, 2001)(en banc)(SMITH and DOLDER, Administrative
Appeals Judges, dissenting in part and concurring in part).


Judges Smith and Dolder, for the minority, agreed with employer's contention that the
administrative law judge committed reversible error in determining that the biopsy findings
establish the existence of pneumoconiosis under 20 C.F.R. §718.202(a)(2).  In the
absence of any medical evidence affirmatively linking the biopsy findings with claimant's
coal mine employment, the diagnoses of "anthracosis" cannot constitute "pneumoconiosis"
within the meaning of the Act and implementing regulations.  30 U.S.C. §902(b); 20
C.F.R. §§718.201, 718.202(a), (a)(1) and (b).  The minority thus indicated that
the Director's interpretation of the regulations, namely that the etiology of claimant's
conditions diagnosed on biopsy is properly considered not pursuant to the regulation at 20
C.F.R. §718.202(a) but pursuant to the regulation at 20 C.F.R. §718.203, is not
reasonable in this instance and does not merit the deference accorded it by the majority. 
The minority disagreed with the majority's conclusion that the administrative law judge's
finding, that the diagnoses of "anthracosis" made on biopsy support a finding of the
existence of pneumoconiosis, is supported by the Fourth Circuit's decision in
Fuller, as the court did not reach the issue sub judice.
Hapney v. Peabody Coal Co.,      BLR      , BRB No. 00-0336 BLA (June
29, 2001)(en banc)(SMITH and DOLDER, Administrative Appeals Judges,
dissenting in part and concurring in part).


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