BRB No. 02-0549 BLA
WILLIAM H. BENTLEY )
)
Claimant-Respondent )
)
v. )
)
TORIE MINING, INCORPORATED ) DATE ISSUED:04/29/2003
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order On Remand Awarding Benefits of Thomas
F. Phalen, Jr., Administrative Law Judge, United States Department of
Labor.
William Lawrence Roberts, Pikeville, Kentucky, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.
Jeffrey S. Goldberg (Howard Radzely, Acting Solicitor of Labor; Donald
S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation
and Legal Advice), Washington, D.C., for the Director, Office of
Workers' Compensation Programs, United States Department of Labor.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order On Remand Awarding Benefits (00-BLA-0467) of Administrative Law Judge Thomas F. Phalen, Jr. (the administrative law
judge) on a claim filed pursuant to the provisions of Title IV of the Federal Coal
Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq.
(the Act).[1] This case is before the Board for
the second time. The Board, in Bentley v. Torie Mining Inc., BRB No. 01-0217 BLA (Oct. 19, 2001)(unpublished), affirmed the administrative law judge's
finding that claimant established the existence of pneumoconiosis by x-ray evidence
at 20 C.F.R. §718.202(a)(1) (2000) and total respiratory or pulmonary
disability at 20 C.F.R. §718.204(c)(4) (2000). The Board vacated the
administrative law judge's findings regarding disability causation at 20 C.F.R.
§718.204(b) (2000) and remanded the case for the administrative law judge to
consider the relevant evidence pursuant to the revised regulation at 20 C.F.R.
§718.204(c).[2] On remand, the
administrative law judge set forth the relevant evidence, the provisions of 20
C.F.R. §718.204(c), and relevant case law of the United States Court of
Appeals for the Sixth Circuit within whose jurisdiction the instant case arises.
Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en banc). The
administrative law judge noted claimant's burden to establish that pneumoconiosis
is a substantially contributing cause of his total respiratory or pulmonary
disability. The administrative law judge, in determining that claimant met his
burden to establish disability causation in this case, relied on the opinions of
Drs. Younes[3] and Baker,[4] and Dr. Potter,[5] claimant's
treating physician. The administrative law judge credited these opinions, finding
that they were supported by the medical data and corroborated by claimant's history
of thirty-two years of underground coal mine employment and by his moderate
cigarette smoking history. Accordingly, benefits were awarded.
On appeal, employer contends that the Board's decision to affirm the
administrative law judge's prior findings that the x-ray evidence establishes the
existence of pneumoconiosis and that claimant is totally disabled due to a
respiratory or pulmonary impairment, must be revisited in light of intervening
controlling authority, namely Nat'l Mining Ass'n v. Department of Labor, 292
F.3d 849, BLR (D.C. Cir. 2002), aff'g in part and rev'g in part
Nat'l Mining Ass'n v. Chao, 160 F. Supp.2d 47, BLR (D.D.C. 2001) and
Peabody Coal Co. v. Groves, 277 F.3d 829, 22 BLR 2-320 (6th Cir. 2002),
cert. denied, 123 S.Ct. 865 (U.S. Jan. 13, 2003), respectively. Employer
further contends that the Board, in affirming the administrative law judge's
finding that claimant established total respiratory or pulmonary disability in this
case, erred in failing to require that the administrative law judge analyze the
relevant evidence as a whole prior to making such a determination. Employer also
contends that the administrative law judge on remand, in determining the cause of
claimant's impairment, applied the wrong standard, failed to follow the Board's
remand instructions, and did not adequately explain his reasons for crediting the
opinions of Drs. Younes, Baker and Potter. Claimant responds, and seeks affirmance
of the decision below as supported by substantial evidence. The Director, Office
of Workers' Compensation Programs (the Director), responds, and contends that the
2002 decision of the United States Court of Appeals for the District of Columbia
Circuit in Nat'l Mining Ass'n does not constitute intervening precedent
mandating that the Board revisit its affirmance of the administrative law judge's
finding that the x-ray evidence establishes the existence of pneumoconiosis.
Employer has filed a reply brief.
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with applicable law, they are binding
upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as
incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
Employer contends that the Board's decision to affirm the administrative law
judge's finding that the x-ray evidence establishes the existence of pneumoconiosis
must be revisited in light of the District of Columbia Circuit's decision in
Nat'l Mining Ass'n. Employer relies on the court's reference to the
concession of counsel for the Director at oral argument that the occurrence of
latent and progressive pneumoconiosis is rare. Employer argues that insofar as the
administrative law judge, in his original Decision and Order, relied on the theory
that pneumoconiosis is progressive in applying the later evidence rule and in
finding the existence of pneumoconiosis established at 20 C.F.R.
§718.202(a)(1) (2000), he erred. Employer argues that there is no medical
support in the record to show that claimant's pneumoconiosis was "one of those very
rare ones in which his disease progressed in the absence of further exposure."
Employer's Brief at 14. Employer asserts that the x-ray readings simply reflect
a difference of opinion, and not a progression of the disease over time. Employer
thus alleges that it was not rational for the administrative law judge to credit
Dr. Mathur's positive x-ray reading of the July 15, 2000 x-ray over Dr. Fino's
negative reading of the July 5, 2000 x-ray on the theory that claimant's
pneumoconiosis progressed. Employer also argues that it was not rational for the
administrative law judge to credit Dr. Mathur's positive reading of a November 1988
x-ray over the negative readings of the June and July 1988 x-rays rendered by Drs.
Sargent and Barrett, based on the theory that claimant's pneumoconiosis progressed.
Employer asserts that in so doing the administrative law judge erroneously
disregarded uncontradicted x-ray films by qualified readers.
The Director responds that Nat'l Mining Ass'n does not constitute
intervening precedent, and argues that counsel for the Director merely conceded,
at oral argument, that not every case of pneumoconiosis is progressive and that not
every coal miner who does not have pneumoconiosis at the end of his mining career
will eventually develop it. Employer replies that the administrative law judge
summarily relied on the later evidence rule based on the unsubstantiated theory
that pneumoconiosis is progressive.
Employer's contention, that the decision in Nat'l Mining Ass'n
constitutes intervening case law compelling the Board to revisit its prior
affirmance of the administrative law judge's finding of the existence of
pneumoconiosis at 20 C.F.R. §718.202(a)(1) (2000), lacks merit. The
administrative law judge, in his Decision and Order dated October 25, 2000, noted
that pneumoconiosis is a progressive and irreversible disease. See 2000
Decision and Order at 10. The administrative law judge then accorded little weight
to five x-rays dated before 1981 and interpreted as negative by B-readers, because
he found them separated from the most recent x-rays by over seventeen years and
therefore found them too old to be probative of claimant's condition. Id.
The administrative law judge also accorded greatest weight to the x-ray
interpretations rendered by physicians who were dually qualified as Board certified
radiologists and B-readers. The administrative law judge accorded determinative
weight to the positive x-ray interpretations of Dr. Mathur, however, as he was the
only dually qualified reader to interpret recent x-rays over a two-year period,
namely from 1998 to 2000. Id. at 11-12. The Board upheld, as rational, the
administrative law judge's weighing of the x-ray evidence. Bentley, slip op.
at 3. The fact that counsel for the Director in Nat'l Mining Ass'n conceded
at oral argument that the occurrence of latent and progressive pneumoconiosis is
rare, does not nullify the administrative law judge's substantive weighing of the
x-ray evidence in this case. We, therefore, reject employer's assertion that
Nat'l Mining Ass'n constitutes intervening precedent mandating that the
Board revisit its decision to affirm the administrative law judge's finding of
pneumoconiosis at 20 C.F.R. §718.202(a)(1) (2000) in the instant case.
Employer next contends that the Board must revisit its affirmance of the
administrative law judge's finding that claimant established a totally disabling
respiratory impairment based on the medical opinion evidence, in light of the
recent decision in Groves, wherein the Sixth Circuit held that an
administrative law judge must examine treating physicians' opinions on their merits
and make a reasoned judgment about their credibility. Employer argues that the
administrative law judge did not consider whether the opinion of Dr. Potter,
claimant's treating physician, was documented. Employer asserts that the
administrative law judge's decision "no less than the Board's decision to affirm
it, reflects a pure, unfounded preference for the treating doctor that even
Groves does not condone." Employer's Brief at 17. Employer also argues
that the administrative law judge did not consider any factors provided in the
newly promulgated regulation at 20 C.F.R. §718.104(d). Employer concedes, in
the alternative, that the regulation at 20 C.F.R. §718.104(d) does not apply
in this case.
Employer's contentions lack merit. The Board, in Bentley, noted that
the administrative law judge credited the opinions of Drs. Younes, Baker and Potter
as they were reasoned opinions and because Dr. Potter was claimant's treating
physician. Bentley, slip op. at 4. Because the administrative law judge
examined Dr. Potter's opinion on its merits and made a reasoned judgment as to its
credibility, the administrative law judge's weighing of this evidence, as well as
the Board's decision to uphold it, is consistent with the case law of the Sixth
Circuit. See Wolf Creek Collieries v. Director, OWCP [Stephens], 298
F.3d 511, BLR (6th Cir. 2002); Groves, supra. Further, the
newly promulgated regulation at 20 C.F.R. §718.104(d) applies to evidence
developed after January 19, 2001 and is thus not applicable to any evidence in the
instant case. See 20 C.F.R. §718.101(b).
Employer next contends that in affirming the administrative law judge's
finding that claimant established total respiratory disability, the Board erred in
failing to require that the administrative law judge analyze all the relevant
evidence together before making his determination. We decline to address
employer's argument. Employer had full opportunity to raise this argument,
challenging the administrative law judge's finding of total respiratory disability
on this basis, when the case was originally before the Board, but failed to do so.
See Employer's Brief in Support of Petition for Review dated December 13,
2000. Inasmuch as employer did not avail itself of this opportunity, it has waived
the issue. See Gillen v. Peabody Coal Co., BRB No. 16 BLR 1-22 (1991)(Stage,
CJ., dissenting).
Lastly, employer contends that the administrative law judge applied the wrong
standard in determining the disability causation issue on remand. Employer alleges
that the Board instructed the administrative law judge to determine whether
pneumoconiosis has a material adverse effect on claimant's condition or whether
pneumoconiosis materially worsens claimant's condition, and asserts that the
administrative law judge did not comply with the Board's instructions. Employer
also argues that the administrative law judge did not identify what "medical data"
supports the conclusions of Drs. Younes, Baker and Potter. Employer additionally
asserts that the administrative law judge mischaracterized Dr. Younes's opinion by
stating that the doctor opined that claimant's impairment was due both to coal mine
employment and cigarette smoking. Employer, conceding that Dr. Baker may have
reached a conclusion sufficient to establish that pneumoconiosis caused claimant's
impairment, further asserts that Dr. Baker's finding is unexplained and unsupported
by any evidence. Employer also argues that Dr. Potter's opinion is unreasoned.
Employer's contentions lack merit. As an initial matter, it is within the
discretion of the administrative law judge to determine the weight and credibility
of the medical opinion evidence. Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR
2-99 (6th Cir. 1983). The administrative law judge properly determined that the
credible medical opinions of record, including the medical reports of Drs. Younes,
Baker and Potter, are sufficient to establish that claimant's pneumoconiosis is a
substantially contributing factor in his total respiratory disability under the
revised regulation at 20 C.F.R. §718.204(c) and to establish that claimant's
totally disabling respiratory impairment is due at least in part to his
pneumoconiosis under Adams v. Director, OWCP, 886 F.2d 818, 13 BLR 2-52 (6th
Cir. 1989). Further, contrary to employer's contention, the administrative law
judge did not mischaracterize the findings of Dr. Younes by stating that the doctor
opined that claimant's impairment was due both to coal mine employment and
cigarette smoking. The administrative law judge correctly referred to the fact
that Dr. Younes opined that claimant's impairment was primarily due to cigarette
smoking and secondarily due to occupational dust exposure. Director's Exhibit 11;
Decision and Order on Remand at 2-3. Because the administrative law judge's
finding on disability causation is rational, supported by substantial evidence, and
in accordance with law, we affirm it.
Accordingly, the administrative law judge's Decision and Order on Remand
Awarding Benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
To Top of Document
Footnotes.
1) The Department of Labor has amended the regulations
implementing the Federal Coal Mine Health and Safety Act of 1969, as amended (the
Black Lung Act). These regulations became effective on January 19, 2001, and are
found at 20 C.F.R. Parts 718, 722, 725, and 726 (2002). All citations to the
regulations, unless otherwise noted, refer to the amended regulations.
Back to Text
2) The provision pertaining to total disability, previously set
out at 20 C.F.R. §718.204(c), is now found at 20 C.F.R. §718.204(b),
while the provision pertaining to disability causation, previously set out at 20
C.F.R. §718.204(b), is now found at 20 C.F.R. §718.204(c).
Back to Text
3) Dr. Younes diagnosed coal workers' pneumoconiosis due to
claimant's coal mine employment and chronic obstructive pulmonary disease due to
smoking and coal mine employment. Dr. Younes opined that claimant's impairment was
primarily due to cigarette smoking and secondarily due to occupational dust
exposure. Director's Exhibit 11.
Back to Text
4) Dr. Baker found a Class II impairment due to claimant's coal
workers' pneumoconiosis. He opined that claimant's physiological impairment due
to obstructive airway disease, as well as his x-ray evidence of pneumoconiosis,
suggest that claimant is one-hundred percent disabled for performing coal mine work
or work in similarly dusty conditions. Director's Exhibit 24. Dr. Baker opined:
Patient has a long history of smoking as well as dust exposure. Both
conditions are known causes of obstructive airway disease. It is
thought that any pulmonary impairment was caused in part by his coal
dust exposure as well as his cigarette smoking history.
Id.
Back to Text
5) Dr. Potter opined that claimant is totally disabled due to
pneumoconiosis. Director's Exhibit 33. Dr. Potter also stated that claimant's
coal workers' pneumoconiosis, due to his exposure to coal and rock dust, is the
cause of claimant's impairment "in total." Claimant's Exhibit 1.
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document