CONSOLIDATION COAL COMPANY, Petitioner, v. Arthur O. HELD; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents, 314 F.3d 184

Vacated and remanded by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge WILLIAMS joined. Judge GREGORY wrote a dissenting opinion. OPINION LUTTIG, Circuit Judge. Arthur Held, a longtime coal miner and smoker, sought benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., from his former employer Consolidation Coal Company (“Consol”). An administrative law judge granted Held benefits, concluding that he had established the existence of pneumoconiosis by the weight of medical opinion evidence. The Benefits Review Board affirmed and Consol petitioned for review.

Because the ALJ failed to weigh all the relevant evidence together, as required by our decision in Island Creek Coal Company v. Compton, 211 F.3d 203 (4th Cir.2000), and because the ALJ gave undue weight to the opinion of Held’s treating physician, Dr. Tsai, we vacate and remand for further proceedings. I. For at least 32 years, Arthur Held had occupational exposure to coal mine dust. He also has a cigarette smoking history of 1 pack per day for at least 40 years. Held retired from coal mine employment in 1982 and filed his first application for federal black lung disability benefits.

An ALJ denied his application and he took no further action concerning the claim. Held filed a new application for benefits on March 14, 1996. Consol was identified as the responsible coal mine operator. The parties stipulated to a material change in condition and the ALJ conducted a hearing. The ALJ first noted that Held could not establish pneumoconiosis under either subsection (a)(2) or (a)(3) of 20 C.F.R. § 718.202 because there was no biopsy evidence and no applicable presumptions. The ALJ then considered the x-ray evidence, which consisted of 29 chest x-rays that had been examined by numerous physicians.

Only 7 of the readings, by 6 physicians, were positive for pneumoconiosis. Fifty-two readings, by multiple physicians, were negative. The ALJ concluded that the most recent x-ray evidence was in conflict and thus he could not “find [that] the miner established CWP [coal workers’ pneumoconiosis] through x-ray evidence alone.” J.A. 526. The medical opinion evidence was also in conflict. Drs. Tsai, Jaworski, and Garson opined that Held had developed a totally disabling chronic obstructive pulmonary disease as a result of both his exposure to coal.dust and his smoking history. Drs.

Renn, Morgan, and Fino testified that Held’s health problems resulted from his smoking history, and not his exposure to coal dust. The ALJ credited the opinions of Drs. Tsai, Jaworski, and Garson, discredited the opinions of Drs. Renn, Morgan, and Fino, and concluded that Held had established the existence of pneumoco-niosis by the weight of medical opinion evidence. After determining that Held had satisfied the other elements necessary for a black lung claim, the ALJ awarded benefits to Held, which were to commence from the month in which Held filed his claim. Consol appealed to the Board, which affirmed.

Consol now petitions for review in this court. II. We review the Board’s order by undertaking an independent review of the record to determine whether the ALJ’s findings of fact were supported by substantial evidence. Island Creek Coal Company v. Compton, 211 F.3d at 207. De novo review applies to the legal conclusions of the Board and ALJ. Id. at 208. A. Consol argues that the ALJ should have weighed all relevant evidence of pneumoconiosis together. 20 C.F.R. § 718.202(

a) provides four ways in which a claimant can establish the presence of pneumoconiosis. The regulation states, in relevant part, that: (

a) A finding of the existence of pneu-moconiosis may be made as follows:

(1) A chest X-ray conducted and classified in accordance with § 718.102 may form the basis for a finding of the existence of pneumoconiosis....

(2) A biopsy or autopsy conducted and reported in compliance with § 718.106 may be the basis for a finding of the existence of pneumoconiosis....

(3) If the presumptions described in §§ 718.304, 718.305 or § 718.306 are applicable, it shall be presumed that the miner is or was suffering from pneumo-coniosis.

(4) A determination of the existence of pneumoconiosis may also be made if a physician, exercising sound medical judgment, notwithstanding a negative X-ray, finds that the miner suffers or suffered from pneumoconiosis as defined in § 718.201.... 20 C.F.R. § 718.202. In Island Creek Coal Company v. Compton, we were presented with the issue of whether ALJs could consider evidence adduced under each of the four subsections of

section 718.202(

a) in the disjunctive. We rejected the Board’s argument that if the evidence relevant to one subsection supported a finding of pneumoconiosis, other evidence bearing on a different subsection could be ignored. Instead, we decided that “the proper method is to weigh the different types of evidence together to determine whether a preponderance of all of the evidence establishes the existence of pneumoconiosis.” Compton, 211 F.3d at 208; see id. (concluding that the “plain meaning” of 30 U.S.C. § 923(

b) requires the weighing of all relevant evidence together “rather than merely within discrete subsections of § 718.202(a)”). In its opinion in this case, the ALJ stated that the Third Circuit had held that evidence under each of the four methods of establishing the disease must be considered together. J.A. 524 (citing Penn Allegheny Coal Co. v. Williams, 114 F.3d 22 (3d Cir.1997)). Having outlined the proper approach, the ALJ proceeded to ignore it. At no point in its opinion did the ALJ weigh the evidence from the different subsections of

section 718.202(

a) against one another. And the Board, in reviewing the ALJ, only considered whether the ALJ’s finding was supportable under

section 718.202(a)(4). The ALJ’s failure to weigh all the evidence together raises precisely the concern expressed in Compton that “the existence of pneumoconiosis could be found even though the evidence as a whole clearly weighed against such a finding.” 211 F.3d at 209. While there was not a perfect consensus as to the x-ray evidence, the vast majority of readers over time had found the x-ray results to be negative. See J.A. 525 (“Fifty-two readings are negative, by multiple physicians, all of whom are B-readers, and either board-certified in radiology or internal medicine, or both.... ”).

Moreover, those physicians who gave negative readings had, as a group, far more impressive credentials than those who rendered positive readings. See id. (of the 6 physicians who gave a positive reading, only 2 were B-readers, 1 was an A-reader, and 3 had unknown qualifications). If the ALJ had properly balanced the x-ray evidence against the medical opinion evidence, which was itself mixed, its conclusion may well have been different. Thus, as we did in Compton, the proper course for this court is to vacate the ALJ’s decision and remand to allow the ALJ to weigh all of the relevant evidence together. B.

Consol also objects to the ALJ’s treatment of Dr. Tsai. Specifically, Consol asserts that the ALJ erred by inflating Dr. Tsai’s credentials and by giving him special deference based solely on his status as Held’s treating physician. Dr. Tsai was Held’s treating physician for ten years. The ALJ noted that, as a treating physician, “generally [Dr. Tsai’s] opinion would ordinarily be entitled to more weight.” J.A. 526. The ALJ proceeded to accord Dr. Tsai’s opinion “a great deal of weight,” id., because he had conducted ten annual examinations of Held. The ALJ’s treatment of Dr. Tsai was inconsistent with the law.

In Grizzle v. Pickands Mather and Co., 994 F.2d 1093 (4th Cir.1993), we clearly stated that “[n]either this circuit nor the Benefits Review Board has ever fashioned either a requirement or a presumption that treating or examining physicians’ opinions be given greater weight than opinions of other expert physicians.” Id. at 1097; see also Compton, 211 F.3d at 212 (“An ALJ may not discredit a physician’s opinion solely because the physician did not examine the claimant.”). That statement is still true today. Thus, while Dr.

Tsai’s opinion may have been entitled to special consideration, it was not entitled to the great weight accorded it by the ALJ. The ALJ’s treatment of Dr. Tsai also deviated from the facts of this case. The ALJ listed Dr. Tsai among the physicians with the best credentials. See J.A. 527 (“Of the six physicians providing post 1990 reports, Drs. Tsai, Jaworski, Renn, and Fino have the best credentials, with Drs. Garson and Morgan, although having impressive credentials, falling a tier below.”). Drs. Jaworski, Renn, and Fino were all B-readers who had specialty training in pulmonary medicine. While Dr.

Tsai is board certified in internal medicine, he has no specialty training in pulmonary medicine and has no special radiological training reading x-rays. J.A. 514. His credentials do not compare to the other top physicians, and the ALJ should not have listed him among them as having comparable credentials. Even were it permissible to accord a physician’s opinion greater weight simply due to his treating status, which it is not, treating status would still be irrelevant when considering the relative credentials of the various physicians.

CONCLUSION For the forgoing reasons, we vacate the order of the Board and remand with instructions for the Board to remand the action to an ALJ for further proceedings. VACATED AND REMANDED. . The Board's opinion suggests that it thought the ALJ weighed the evidence on an infra-subsection basis. See J.A. 544 ("The [ALJ] found that while the existence of pneumoconi-osis was not established pursuant to 20 C.F.R. § 718.202(a)(l)-(3), it was established by the medical opinion evidence pursuant to 20 C.F.R. § 718.202(a)(4).’'). .

It often appears before this court that neither the physician-witness nor the ALJ sufficiently distinguishes between medical and legal pneumoconiosis, a distinction that is imperative for proper resolution of this type of case. In this instance, it was the coal companies’ expert witness, Dr. Renn, who arguably failed in making the critical distinction. On remand this distinction should be borne in mind, not simply by the ALJ, but the witnesses on both sides of the dispute. . Consol also argues that the ALJ erred by failing to properly evaluate Dr. Morgan's credentials. On remand, the ALJ should consider Dr.

Morgan’s extensive credentials, included in the record as Employer's Exhibit 12. . In its brief, Consol also argued that 20 C.F.R. § 725.503(

b) violates

section 7(

c) of the Administrative Procedure Act because it allows the claimant to recover benefits for a period of time for which no evidence of entitlement exists. At oral argument, however, counsel for Consol explicitly withdrew this challenge, and we therefore do not consider it.