Director, Office of Workers' Compensation Programs v. Rowe

Lilburn Rowe filed a claim for benefits under Part C of the Black Lung Benefits Act, 30 U.S.C. § 931 et seq., alleging that his work in coal mines from 1935-1957 left him totally disabled due to pneumoconiosis. The Administrative Law Judge awarded benefits on the basis of a doctor’s opinion that Rowe had pneumoconiosis. The Benefits Review Board found that opinion to be an insufficient basis for the award of benefits, but affirmed on the basis of a second doctor’s opinion which was in the record but not discussed at all by the ALJ. The Director of the Office of Workers’ Compensation Programs now appeals, contending that the Board exceeded its statutory standard of review in finding that the second doctor’s opinion was a documented and reasoned medical opinion sufficient to establish an interim presumption of total disability. The Director asserts that such a finding must initially be made by the ALJ as the factfinder.

We have jurisdiction pursuant to § 21(c) of the Longshoremen’s and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. § 921(c), as incorporated by § 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932(a). For the reasons stated below, we find that the Board exceeded its proper scope of review and, accordingly, we vacate the Board’s decision.

I

Rowe’s claim is governed by Part C of the Black Lung Benefits Act, 30 U.S.C. § 931 et seq. since it was filed after December 31, 1973.

We recently set out the general procedures for processing a black lung claim. Blevins v. Director, OWCP, 683 F.2d 139, 140-41 (6th Cir.1982). A dissatisfied claimant may have his case heard by an ALJ. Then, any party aggrieved by the ALJ’s decision may appeal to the Benefits Review Board. Finally, any party adversely affected or aggrieved by the Board’s decision may appeal to the court of appeals.

In this case, Rowe’s claim was denied by the Director and then heard by an ALJ.

The record before the ALJ included two reports of physical examinations. Dr. P.L. Odom examined Rowe in 1976. Dr. Odom noted that Rowe was missing one eye and had injured his back in 1950, from which he had occasional lower back pain. Dr. Odom also noted that Rowe had complained of significant coughing and phlegm production over a 15-18 year period and shortness of breath upon walking, climbing and while laying down at night. Dr. Odom’s physical examination of Rowe revealed evidence of scattered rhonchi in both lungs. Dr. Odom also conducted a chest x-ray and a ventila-tory function test. He diagnosed bronchitis and coal worker’s pneumoconiosis. Dr. Odom stated his conclusion as follows:

Advanced pneumoconiosis, totally and permanently disabled for coal mining, dusty work to prevent further injury to lungs. Spirometry revealed only mild impairment, but in view of x-ray and history of exertional dyspnea, and advanced age, Mr. Rowe is totally and permanently disabled for all work. I believe that more sophisticated pulmonary. function tests will demonstrate pulmonary impairment.

(App.26).

Dr. C.M. Rivera also examined Rowe in 1976. Dr. Rivera noted that Rowe complained of arm, leg, and back pain but that he took no medication for the pain. Rowe also complained of a chronic cough and shortness of breath but denied suffering from chronic wheezing, orthopnea or paroxysmal nocturnal dyspnea. Dr. Rivera noted that Rowe had worked in the coal mines for 19 years and had smoked xk of a pack of cigarettes per day for 20 years. Dr. Rivera noted that a chest x-ray showed evidence of pneumoconiosis but a test of arterial blood gases was normal. He diagnosed pneumoconiosis, bronchitis, and spinal disease.

The ALJ found that Rowe had established a rebuttable presumption of total disability which was not rebutted by the Director. There are four different ways for a live claimant to establish an interim presumption. 20 C.F.R. § 727.203(a)(l)-{4). The first three interim presumptions involve x-rays, biopsies, ventilatory studies, and arterial blood gas studies which meet prescribed standards. The ALJ found that none of the presumptions set forth in § 727.203(a)(l)-(3) were satisfied and the claimant does not dispute that finding. However, the ALJ found that § 727.-203(a)(4) had been satisfied. That provision states that an interim presumption of disability arises when:

(4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment.

The ALJ found that the interim presumption in (a)(4) had been satisfied based solely on Dr. Rivera’s report. Since the Director failed to rebut that evidence to the ALJ’s satisfaction, benefits were awarded. The ALJ’s opinion did not mention (Dr. Odom’s report at all.

The Director appealed the ALJ’s decision to the Benefits Review Board, contending that the ALJ erred in finding an (a)(4) presumption solely on Dr. Rivera’s diagnosis of pneumoconiosis. The Board agreed with the Director because (a)(4) required a finding of a “totally disabling respiratory or pulmonary impairment” and Dr. Rivera made no such finding. Rowe does not dispute the Board’s finding on this point.

Even though it found the sole basis for the ALJ’s opinion to be insufficient, the Board affirmed the award of benefits. It found that Dr. Odom’s report, even though it was never mentioned by the ALJ, was a documented and reasoned medical opinion sufficient to invoke the (a)(4) presumption. On appeal, the Director contends that the Board should have remanded the case in order to allow the ALJ, rather than the Board, to determine if Dr. Odom’s opinion was a documented and reasoned medical opinion sufficient to invoke the interim presumption of disability.

II

This court’s review of a decision of the Benefits Review Board is limited. “The court of appeals scrutinizes Board decisions for errors of law and for adherence to the statutory standard governing the Board’s review of the administrative law judge’s factual determinations.” Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 1329 (9th Cir.1980). Accord Miller v. Central Dispatch, Inc., 673 F.2d 773, 778-79 (5th Cir.1982); Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 290 (3d Cir.1982). The Board’s function is similarly limited. It is not empowered to engage in a de novo review but rather is limited to reviewing the ALJ’s decision for errors of law and to determine whether the factual findings are supported by substantial evidence in the record viewed as a whole. 33 U.S.C. § 921(b)(3); 20 C.F.R. § 802.301. We hold that the Board failed to adhere to its limited statutory function.

The ALJ’s opinion was clearly deficient. First, the AU failed to set out and discuss all of the medical evidence presented. It is the ALJ’s duty to consider all of the evidence and make findings of fact and conclusions of law which adequately set forth the factual and legal basis for his decision. See Volpe v. Northeast Marine Terminals, 671 F.2d 697, 701 (2d Cir.1982) (disability case brought under Longshoremen’s and Harbor Workers’ Compensation Act). Second, the AU erred in finding Dr. Rivera’s diagnosis of pneumoconiosis to be sufficient to invoke the interim presumption absent a finding of total impairment.

The Board recognized that the sole evidence relied upon by the ALJ was insufficient to support the award of benefits. Furthermore, the Board noted the ALJ’s failure to discuss Dr. Odom’s report. Rather than remanding the case to the ALJ in order to allow him to consider all of the evidence under the proper legal standard, the Board decided that the ALJ reached the right result for the wrong reason and affirmed the award on the basis that Dr. Odom’s opinion was a documented and reasoned medical opinion.

We cannot agree with the Board’s approach. When the ALJ fails to make important and necessary factual findings, the proper course for the Board is to remand the case to the ALJ pursuant to 33 U.S.C. § 921(bX4) rather than attempting to fill the gaps in the ALJ’s opinion. Spra-gue v. Director, OWCP, 688 F.2d 862, 868 n.11 (1st Cir.1982); Volpe, 671 F.2d at 701; Director, OWCP v. U.S. Steel Corp., 606 F.2d 53 (3d Cir.1979). The determination as to whether Dr. Odom’s report was sufficiently documented and reasoned is essentially a credibility matter. As such, it is for the factfinder to decide.

The Board noted in its opinion that Dr. Odom’s opinion was documented because it was “based on an x-ray, pulmonary function study, medical history, and physical examination.” App.12. However, the mere fact that an opinion is asserted to be based upon medical studies cannot by itself establish as a matter of law that it is documented and reasoned. Rather, that determination requires the factfinder to examine the validity of the reasoning of a medical opinion in light of the studies conducted and the objective indications upon which the medical opinion or conclusion is based. Of course, the factfinder should also consider any contrary test results or diagnosis in reaching a decision as to whether a statutory presumption applies and ultimately whether the claimant is totally disabled.

Since neither the Board nor this court is empowered to make such a determination, in light of the record in this ease, the case must be remanded to the ALJ. Volpe, 671 F.2d at 700-01; Director, OWCP v. U.S. Steel, 606 F.2d at 55-56.

Accordingly, the judgment of the Benefits Review Board is Vacated and the case is Remanded to the Board for further proceedings consistent with this opinion.

. The Director has been designated by the Secretary of Labor as the Secretary’s representative in all review proceedings regarding the Black Lung Benefits Act. 20 C.F.R. § 802.410-(b).

. The history of the incorporation and the problems it caused is detailed in Director, OWCP v. Alabama By-Products Corp., 560 F.2d 710 (5th Cir.1977) and in Director, OWCP v. Eastern Coal Corp., 561 F.2d 632 (6th Cir.1977).

. Orthopnea is discomfort in breathing in any but the erect sitting or standing position.

. Paroxysmal nocturnal dyspnea is an acute shortness of breath appearing suddenly at night.

. This case is distinguishable from Director, OWCP v. Gurule, 653 F.2d 1368 (10th Cir. 1981). In that case, the Board found that a factual determination made by the ALJ was not supported by substantial evidence and simply applied a regulation implemented by the Secretary as a matter of law.

We also believe that this case is distinguishable from Lawson v. Secretary of HHS, 688 F.2d 436 (6th Cir.1982). In Lawson, the claim for benefits was filed under Part B of the Black Lung Benefits Act and was originally ruled upon by the Secretary of HEW rather than the Secretary of Labor. Thus, Lawson was decided under the hearing and review procedures of the Social Security Act, 42 U.S.C. § 405, rather than under the review procedures of the Longshoremen’s Act. The major difference between the two review procedures for the purposes of this case is that the regulations promulgated under the Social Security Act allow the Appeals Council to obtain and review additional evidence under certain circumstances. 688 F.2d at 439-40. The Benefits Review Board has no authority to obtain additional evidence or make any factual findings. In that respect, the Board’s function is similar to that of the district court’s in Social Security disability cases and also to that of the district court’s under the pre-1972 Longshoremen’s Act. See Miller v. Central Dispatch, Inc., 673 F.2d 773, 779 n.12 (5th Cir.1982).

. The validity of Dr. Odom’s opinion is certainly open to attack. First, the x-ray which he found to be positive for pneumoconiosis (but apparently still insufficient to establish an interim presumption pursuant to 20 C.F.R. § 727.203(a)(1)) was later found to be unreadable by more qualified readers. Second, the pulmonary function study noted by the Board as documentation was inconclusive. Dr. Odom stated his belief “that more sophisticated pulmonary function tests will demonstrate a pulmonary impairment,” but no such tests are in the record. Finally, Dr. Odom’s report on Rowe’s medical history contains no mention of Rowe’s smoking habit.

. Unlike the concurring opinion, we do not intimate our view of the effect of the remand on the ultimate outcome of this case since such a suggestion would be inconsistent with the function of an appellate court.