Rexal Rhodes v. Oasis Contracting and West Virginia Coal Workers' Pneumoconiosis Fund (Board decision, March 28, 2025)

BRB interlocutory order. The Benefits Review Board affirmed part of the administrative law judge's decision, vacated the black lung benefits award, and remanded for further consideration of the x-ray and medical opinion evidence. Entitlement remains unresolved. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

Rexal Rhodes sought black lung benefits after 10.81 years of coal mine work. The judge awarded benefits after finding complicated pneumoconiosis, which would trigger an irrebuttable presumption. Oasis Contracting challenged the judge's reading of the x-rays and medical opinions. The Board held that the judge had not explained why one radiologist's use of more notation symbols made his readings more credible on the decisive question of a large lung opacity. It vacated the disease finding and benefits award because the x-ray error also affected the overall review of the medical evidence. The case returns to the judge for a new evaluation.

Decision snapshot

• Authority: Complicated pneumoconiosis presumption under 30 U.S.C. § 921(c)(3) and 20 C.F.R. § 718.304.
• Outcome: Benefits award vacated and remanded in part.
• Key point: More notation symbols on an x-ray form do not, without explanation, make a reading more persuasive about complicated pneumoconiosis.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 24-0197 BLA

REXAL RHODES
)
)
Claimant-Respondent
)
)
v. )
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OASIS CONTRACTING
)
)
and
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NOT-PUBLISHED
)
WEST VIRGINIA COAL WORKERS’
)
PNEUMOCONIOSIS FUND
) DATE ISSUED: 03/28/2025
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
)
DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of William P. Farley, Administrative Law Judge, United States Department of Labor.

Joseph E. Wolfe and Donna E. Sonner (Wolfe Williams & Austin), Norton, Virginia, for Claimant.

Chris M. Green and Wes A. Shumway (Spilman Thomas & Battle, PLLC), Charleston, West Virginia, for Employer and its Carrier.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS and BUZZARD, Administrative Appeals Judges.
PER CURIAM:

Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) William P. Farley’s Decision and Order Awarding Benefits (2021-BLA-05252) rendered on a claim filed on February 20, 2018, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).

The ALJ credited Claimant with 10.81 years of coal mine employment. He found Claimant established complicated pneumoconiosis and therefore invoked the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304. Further, he found Claimant’s complicated pneumoconiosis arose out of his coal mine employment and awarded benefits. 20 C.F.R.
§718.203(b).

On appeal, Employer argues the ALJ erred in finding Claimant established complicated pneumoconiosis.1 Claimant responds in support of the award of benefits. The Acting Director, Office of Workers’ Compensation Programs, has not filed a response brief.

The Benefits Review Board’s scope of review is defined by statute. We must affirm the ALJ’s Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.2 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).

Invocation of the Section 411(c)(3) Presumption

Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), provides an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis if he suffers from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or

1
We affirm, as unchallenged on appeal, the ALJ’s finding that Claimant has 10.81 years of coal mine employment. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1- 711 (1983); Decision and Order at 7-10.
2
The Board will apply the law of the United States Court of Appeals for the Fourth Circuit because Claimant performed his last coal mine employment in West Virginia. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Director’s Exhibit 3; Hearing Transcript at 16.

2
(c) when diagnosed by other means, would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). See 20 C.F.R. §718.304. In determining whether a claimant has invoked the irrebuttable presumption, the ALJ must weigh all evidence relevant to the presence or absence of complicated pneumoconiosis. See Westmoreland Coal Co. v. Cox, 602 F.3d 276, 283 (4th Cir. 2010); E. Assoc. Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 255-56 (4th Cir. 2000); Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33-34 (1991) (en banc).

Employer contends the ALJ erred in weighing the x-ray and medical opinion evidence and failed to properly consider the evidence as a whole in finding Claimant established complicated pneumoconiosis and invoked the irrebuttable presumption. Employer’s Brief at 7-15. We agree.

20 C.F.R. §718.304(a) – X-rays

The ALJ considered six interpretations of three x-rays dated March 27, 2018, December 31, 2020, and June 24, 2021. Decision and Order at 15-19. All of the interpreting physicians are dually-qualified B readers and Board-certified radiologists, except Dr. Gaziano, who is a B reader but not a Board-certified radiologist. Decision and Order at 16-17.

Dr. Crum read the March 27, 2018 x-ray as positive for complicated pneumoconiosis, Category A, while Drs. Gaziano and Meyer read it as positive for simple pneumoconiosis and negative for complicated pneumoconiosis.3 Claimant’s Exhibit 1; Director’s Exhibit 11 at 6; Employer’s Exhibit 3. The ALJ credited Dr. Crum’s reading as “thorough,” noting he check-marked “six different obligatory issues” on Claimant’s International Labour Organization (ILO) x-ray form, including pleural thickening of an interlobar fissure. Decision and Order at 18 (citing Claimant’s Exhibit 1) (emphasis added). On the other hand, the ALJ noted that Dr. Meyer check-marked “only . . . four obligatory symbols” and did not identify any pleural thickening. Id. (citing Employer’s Exhibit 3) (emphasis added). Further, the ALJ noted Dr. Gaziano is not a Board-certified radiologist but found his reading was “helpful in understanding . . . Claimant’s lung opacities[,]” specifically because he identified “significant apical pleural thickening.”

3
Dr. Crum identified atherosclerotic aorta (aa), coalescence of small opacities (ax), bulla(e) (bu), emphysema (em), enlargement of non-calcified hilar or mediastinal lymph nodes (hi), and pleural thickening of an interlobular fissure (pi). Claimant’s Exhibit 1. Dr. Gaziano identified significant apical pleural thickening (at). Director’s Exhibit 11 at 6. Dr. Meyer identified atherosclerotic aorta (aa), bulla(e) (bu), marked distortion of an intrathoracic structure (di), and emphysema (em). Employer’s Exhibit 3.

3
Decision and Order at 17-18; Director’s Exhibits 11, 16. The ALJ concluded Dr. Crum’s reading was entitled to more weight than Dr. Meyer’s reading because he provided a more “precise and careful[]” reading of the March 27, 2018 x-ray that was consistent with Dr. Gaziano’s identification of pleural thickening, which “Dr. Meyer missed.”4 Decision and Order at 18. Thus, the ALJ found the March 27, 2018 x-ray positive for complicated pneumoconiosis. Id.

Dr. DePonte read the December 31, 2020 x-ray as positive for simple pneumoconiosis and negative for complicated pneumoconiosis. Employer’s Exhibit 1 at

5. As there are no other readings of this x-ray, the ALJ found it positive for simple
   pneumoconiosis and negative for complicated pneumoconiosis. Decision and Order at 18.

   Dr. Crum read the June 24, 2021 x-ray as positive for complicated pneumoconiosis,
   Category A, and check-marked boxes for six “Other Symbols” on Claimant’s ILO x-ray form. Claimant’s Exhibit 2. Dr. Kendall read the x-ray as positive for simple pneumoconiosis and negative for complicated pneumoconiosis and did not check-mark any “Other Symbols” boxes on Claimant’s ILO x-ray form. Employer’s Exhibit 2 at 22-23. The ALJ gave greater weight to Dr. Crum’s reading, finding it was “much more thorough” than Dr. Kendall’s reading. Decision and Order at 19. Therefore, the ALJ found the June 24, 2021 x-ray positive for complicated pneumoconiosis. Id.

   Considering the x-ray evidence as a whole, the ALJ found two of the three x-rays
   positive for complicated pneumoconiosis and therefore found the preponderance of the x- ray evidence supports a finding of complicated pneumoconiosis. Decision and Order at 19.

   We agree with Employer that the ALJ erred in considering the conflicting x-ray
   evidence. Employer’s Brief at 7-14.

   As Employer points out, Dr. Gaziano’s reading of the March 27, 2018 x-ray is not
   consistent with Dr. Crum’s reading. Employer’s Brief at 10-13. First, Dr. Gaziano interpreted the March 27, 2018 x-ray as negative for complicated pneumoconiosis, which directly contradicts Dr. Crum’s reading. Director’s Exhibit 11 at 6; Claimant’s Exhibit 1. Further, Dr. Gaziano identified apical pleural thickening while Dr. Crum identified pleural thickening of an interlobar fissure. Director’s Exhibit 11 at 6; Claimant’s Exhibit 1. Moreover, while the ALJ noted Dr. Gaziano’s qualifications and stated that his reading was

   4
   The ALJ also noted that Dr. Jarboe identified pleural thickening on the March 27,
   2018 x-ray and that Dr. DePonte identified significant apical pleural thickening in her reading of the December 31, 2020 x-ray. Decision and Order at 18 n.135; Employer’s Exhibits 1 at 5; 2 at 8.

                                       4
   

   “helpful in understanding . . . Claimant’s lung opacities[,]” the ALJ did not actually discuss the weight he gave to Dr. Gaziano’s interpretation in weighing the conflicting readings of the March 27, 2018 x-ray.5 See Sea “B” Mining Co. v. Addison, 831 F.3d 244, 252-53, 255-56 (4th Cir. 2016) (ALJ must conduct an appropriate analysis of the evidence to support his conclusion and render necessary credibility findings); Tackett v. Director, OWCP, 7 BLR 1-703, 1-706 (1985) (if the ALJ misconstrues relevant evidence, the case must be remanded for reevaluation of the issue to which the evidence is relevant); McCune v. Cent. Appalachian Coal Co., 6 BLR 1-996, 1-998 (1984) (fact finder’s failure to discuss relevant evidence requires remand); Decision and Order at 17-18.

   Further, in weighing the positive readings of Dr. Crum against the negative readings
   of Drs. Meyer and Kendall, the ALJ determined only that Dr. Crum’s readings were more “thorough” based on his identification of more “Other Symbols.” Decision and Order at 18-19; Employer’s Brief at 8-10. The ALJ did not explain, nor is it clear from the record, why Dr. Crum’s identification of a greater number of “other abnormalities” renders his opinion more credible on the relevant issue of whether Claimant suffers from a chronic dust disease of the lung which, when diagnosed by x-ray, would yield an opacity greater than one centimeter in diameter that would be classified as Category A, B, or C. 30 U.S.C.
   §921(c)(3); 20 C.F.R. §718.304. The ALJ’s rationale does not adequately address this issue in considering the conflicting x-ray readings.

   Additionally, although Dr. Kendall did not check-mark “Other Symbols” on the ILO
   

   x-ray form, he did check-mark on that form that Claimant had abnormalities, which he clarified in his narrative report. He described “nodular densities within the mid and upper lung zones characterized as p/q and 1/2. There is pleural and parenchymal scarring in the lung apices. Biapical bulla are present. The lungs are otherwise clear.” Employer’s Exhibit
   2. The ALJ therefore failed to adequately explain why Dr. Crum’s reading was more
   thorough than Dr. Kendall’s reading.

   Because the ALJ mischaracterized the evidence, did not consider all the evidence,
   and failed to conduct the proper inquiry under the Act and regulations in resolving the conflict in the x-ray readings, we must vacate his finding that Claimant established complicated pneumoconiosis under 20 C.F.R. §718.304(a). 30 U.S.C. §921(c)(3); see

   5
   Employer contends the ALJ did not consider Dr. DePonte’s reading of the March
   27, 2018 x-ray. Employer’s Brief at 13-14; Director’s Exhibit 12. However, neither party designated this x-ray reading as affirmative or rebuttal evidence or as a treatment record. Employer’s and Claimant’s Evidence Summary Forms. Consequently, we reject this argument.

                                         5
   

   Addison, 831 F.3d at 252-53, 255-56; Wojtowicz v. Duquesne Light Co., 12 BLR 1-162, 1- 165 (1989); McCune, 6 BLR at 1-998; Decision and Order at 17-19.

   20 C.F.R. §718.304(c) – Other Medical Evidence

   We also agree with Employer that the ALJ’s errors in considering the x-ray evidence
   impacted his weighing of the medical opinions and the evidence as a whole. Employer’s Brief at 14-15.

   The ALJ considered Drs. Gaziano’s, Agarwal’s, and Jarboe’s medical opinions and
   

   accurately noted they all diagnosed simple pneumoconiosis and did not diagnose complicated pneumoconiosis. Decision and Order at 20-24; Director’s Exhibit 11; Employer’s Exhibits 1, 2. The ALJ found Drs. Gaziano’s and Agarwal’s opinions to be documented and reasoned and Dr. Jarboe’s opinion to be entitled to little weight, and he concluded the medical opinions supported a finding of simple pneumoconiosis. Decision and Order at 23-24. The ALJ also found Claimant’s treatment records did not support or refute the presence of pneumoconiosis. Decision and Order at 24-26; Employer’s Exhibits 4-6.

   In weighing the evidence together, the ALJ concluded the x-ray evidence was the
   “most probative evidence” regarding the existence of complicated pneumoconiosis because Claimant’s treatment records did not address pneumoconiosis, Drs. Gaziano’s and Agarwal’s opinions did not address the positive x-rays of record, and Dr. Jarboe’s opinion was entitled to little weight. Decision and Order at 26. Thus, the ALJ concluded Claimant established complicated pneumoconiosis based on the evidence as a whole. Id.

   Because the ALJ’s weighing of the x-ray evidence affected the weight he assigned
   the medical opinion evidence, we vacate his finding at 20 C.F.R. §718.304(c). Thus, we vacate the ALJ’s overall finding that Claimant invoked the irrebuttable presumption of total disability due to complicated pneumoconiosis, and the award of benefits. 20 C.F.R.
   §718.304; see Melnick, 16 BLR at 1-33-34; Decision and Order at 26-28 Employer’s Brief at 14-15.

                             Remand Instructions
   

   On remand, the ALJ must reconsider whether Claimant has established complicated
   pneumoconiosis. 20 C.F.R. §718.304. In weighing the x-ray evidence, the ALJ must resolve the conflicts in the readings of each individual x-ray and then reach an overall finding as to whether the x-ray evidence supports a finding of complicated pneumoconiosis in accordance with the Act. 30 U.S.C. §921(c)(3); 20 C.F.R. §§718.202(a)(1), 718.304; see Addison, 831 F.3d at 256-57 (ALJ must perform both a qualitative and quantitative analysis of conflicting x-ray evidence). The ALJ then must reconsider the credibility of
   6
   the medical opinion evidence and weigh all the relevant evidence together to determine if the evidence as a whole establishes complicated pneumoconiosis. 20 C.F.R. §718.304; see Cox, 602 F.3d at 283; Scarbro, 220 F.3d at 255-56.

   If the ALJ finds Claimant has met his burden to establish complicated
   pneumoconiosis, Claimant will have invoked the irrebuttable presumption of total disability due to pneumoconiosis. 20 C.F.R. §718.304. The ALJ must then consider whether Claimant’s complicated pneumoconiosis arose out of his coal mine employment. 20 C.F.R. §718.203(b). If the ALJ finds Claimant’s complicated pneumoconiosis arose out of his coal mine employment, he may reinstate the award of benefits. If the ALJ finds Claimant has not established complicated pneumoconiosis, he must consider whether Claimant can establish entitlement to benefits under 20 C.F.R. Part
   718. 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.204.

   In rendering his findings on remand, the ALJ should adequately explain his
   credibility determinations in accordance with the Administrative Procedure Act.6 5 U.S.C.
   §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a); see Wojtowicz, 12 BLR at 1-165.

   6
   The Administrative Procedure Act provides that every adjudicatory decision must
   include “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented . . . .” 5 U.S.C. §557(c)(3)(A), as incorporated into the Act by 30 U.S.C. §932(a).

                                        7
   

   Accordingly, we affirm in part and vacate in part the ALJ’s Decision and Order
   Awarding Benefits, and we remand the case to the ALJ for further consideration consistent with this opinion.

   SO ORDERED.

                                    DANIEL T. GRESH, Chief
                                    Administrative Appeals Judge
   
                                    JUDITH S. BOGGS
                                    Administrative Appeals Judge
   
                                    GREG J. BUZZARD
                                    Administrative Appeals Judge