BRB No. 00-1043 BLA
HAROLD McCAIN )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/30/2001
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order on Remand of Robert L. Hillyard,
Administrative Law Judge, United States Department of Labor.
Gregory E. Hull (Millikin & Fitton Law Firm), Hamilton, Ohio, for
claimant.
Jennifer U. Toth and Mary Forrest-Doyle (Howard M. Radzely, Acting
Solicitor of Labor; Donald S. Shire, Associate Solicitor; Rae Ellen
Frank James, Deputy Associate Solicitor; Richard A. Seid and 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 and DOLDER, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (97-BLA-1450) of
Administrative Law Judge Robert L. Hillyard denying benefits 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] In the initial Decision and Order, the administrative law judge, after crediting
claimant with four years of coal mine employment, found that the evidence was insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4) (2000). Although the administrative law judge found that
the evidence was sufficient to establish total disability pursuant to 20 C.F.R. §718.204(c) (2000), the administrative
law judge found that the evidence was insufficient to establish that claimant's total disability was due to pneumoconiosis
pursuant to 20 C.F.R. §718.204(b) (2000). Accordingly, the administrative law judge denied benefits. By Decision
and Order dated October 29, 1999, the Board affirmed the administrative law judge's findings pursuant to 20 C.F.R.
§§718.202(a)(1), (a)(2) and (a)(3) (2000) and 718.204(c) (2000) as unchallenged on appeal. McCain v.
Director, OWCP, BRB No. 98-1268 BLA (Oct. 29, 1999) (unpublished). The Board also affirmed the administrative
law judge's length of coal mine employment finding. Id. The Board, however, vacated the administrative law
judge's findings pursuant to 20 C.F.R. §§718.202(a)(4) (2000) and 718.204(b) (2000) and remanded the case
to the administrative law judge for further consideration. Id.
On remand, the administrative law judge found that the evidence was insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(4) (2000). The administrative law judge also found that the
evidence was insufficient to establish that claimant's total disability was due to pneumoconiosis pursuant to 20 C.F.R.
§718.204(b) (2000). Accordingly, the administrative law judge denied benefits. On appeal, claimant contends that
the administrative law judge erred in finding the medical opinion evidence insufficient to establish the existence of
pneumoconiosis. Claimant also argues that the administrative law judge erred in finding that the evidence was insufficient
to establish that his total disability was due to pneumoconiosis. The Director, Office of Workers'
Compensation Programs, responds in support of the administrative law judge's denial of benefits. In a reply brief,
claimant reiterates his previous contentions.
The Board must affirm the findings of the administrative law judge if they are
supported by substantial evidence, are rational, and are in accordance with
applicable law. 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).
Claimant contends that the administrative law judge erred in finding the medical opinion evidence insufficient to
establish the existence of pneumoconiosis. Claimant specifically argues that the administrative law judge erred in finding
that Dr. Rubio's opinion is insufficient to establish the existence of pneumoconiosis.
In a letter dated November 9, 1995, Dr. Rubio explained that his diagnosis of pneumoconiosis was based upon
pulmonary function studies demonstrating a "significant restrictive component." Director's Exhibit 25. In a followup letter
dated January 4, 1996, Dr. Rubio reiterated that his finding of pneumoconiosis was based upon "pulmonary function test
criteria." Claimant's Exhibit 1. Dr. Rubio explained that "restrictive patterns are more commonly seen with
pneumoconiosis than with obstructive pulmonary disease." Id. In a letter dated December 15, 1997, Dr. Rubio noted
that there was "no doubt that [claimant] has a restrictive component with severe decrease in the diffusion capacity which
would be more [sic] with a fibrotic illness rather than an obstructive illness." Id.
The administrative law judge noted that Dr. Rubio's finding of a restrictive impairment was inconsistent with his
interpretation of three earlier pulmonary function studies.[2] Decision and Order
on Remand at 4. In weighing a medical opinion, an administrative law judge must "examine the validity of the reasoning
of [the] medical opinion in light of the studies conducted and the objective indications upon which the medical opinion or
conclusion is based." Director, OWCP v. Rowe, 710 F.2d 251, 255, 5 BLR 2-99, 2-103 (6th Cir. 1983). In the
instant case, the administrative law judge permissibly questioned Dr. Rubio's diagnosis of pneumoconiosis because the
basis for his diagnosis, the fact that there was evidence of a restrictive impairment, is not supported by Dr. Rubio's own
interpretation of claimant's pulmonary function studies. See generally Clark v. Karst-Robbins Coal
Co., 12 BLR 1-149 (1989)(en banc); Lucostic v. United States Steel
Corp., 8 BLR 1-46 (1985).
The administrative law judge also acted within his discretion in finding that Dr. Rubio's opinion was too equivocal
to support a finding of pneumoconiosis. See Justice v. Island Creek Coal Co., 11 BLR 1-91
(1988); Campbell v. Director, OWCP, 11 BLR 1-16 (1987); Decision and Order on Remand at 4. The
Board previously affirmed the administrative law judge's finding of four years of coal mine employment.
See McCain, supra. In his most recent opinion, Dr. Rubio, after indicating his belief
that claimant had actually worked nine years in the coal mines, opined that even if claimant's coal dust exposure was for
four years, claimant "still could have suffered during that time sufficient to result in the current impairment...."
Unmarked Exhibit (emphasis added).
The administrative law judge also discredited Dr. Rubio's opinion because it was unclear whether he had an accurate
understanding of the extent of claimant's smoking history. Although Dr. Rubio referenced the fact that claimant had a
smoking history, Dr. Rubio provided no indication that he was aware of the extent of that history. An administrative law
judge may properly discredit the opinion of a physician which is based upon an inaccurate or incomplete picture
of the miner's health. See generally Bobick v. Saginaw Mining Co., 13 BLR 1-52 (1988);
Rickey v. Director, OWCP, 7 BLR 1-106 (1984). We, therefore, hold that the administrative law
judge properly found that Dr. Rubio's opinion was insufficient to support a finding of pneumoconiosis.[3]
Claimant argues that the opinions of Drs. Burton and Fritzhand are not sufficiently reasoned. The administrative
law judge failed to adequately consider whether the opinions of Drs. Burton and Fritzhand were sufficiently reasoned.
However, inasmuch as the opinions of Drs. Burton and Fritzhand do not assist claimant in establishing the existence of
pneumoconiosis, see Director's Exhibits 11, 35, the administrative law judge's error, if any, in his
consideration of their opinions is harmless. See Larioni v. Director, OWCP, 6 BLR 1-1276
(1984). Inasmuch as it is supported by substantial evidence, we affirm the administrative law judge's finding that the
medical opinion evidence is insufficient to establish the existence of pneumoconiosis. 20 C.F.R. §718.202(a)(4).
In light of our affirmance of the administrative law judge's finding that the
evidence is insufficient to establish the existence of pneumoconiosis, we affirm
the administrative law judge's denial of benefits under 20 C.F.R. Part 718.
See Trent v. Director, OWCP, 11 BLR 1-26 (1987); Gee v. W.G. Moore
and Sons, 9 BLR 1-4 (1986) (en banc); Perry v. Director, OWCP,
9 BLR 1-1 (1986) (en banc). Consequently, we need not address claimant's
challenge to the administrative law judge's finding at 20 C.F.R. §718.204(b)
(2000). Larioni, supra.
Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)The Department of Labor has amended the regulations
implementing the Federal Coal Mine Health and Safety Act of 1969, as
amended. These regulations became effective on January 19, 2001, and are
found at 65 Fed. Reg. 80,045-80,107 (2000)(to be codified at 20 C.F.R. Parts
718, 722, 725, and 726). All citations to the regulations, unless otherwise
noted, refer to the amended regulations.
Pursuant to a lawsuit challenging revisions to 47 of the regulations
implementing the Act, the United States District Court for the District of
Columbia granted limited injunctive relief for the duration of the lawsuit,
and stayed, inter alia, all claims pending on appeal before the Board
under the Act, except for those in which the Board, after briefing by the
parties to the claim, determined that the regulations at issue in the
lawsuit would not affect the outcome of the case. National Mining Ass'n
v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9, 2001)(order granting
preliminary injunction). The Board subsequently issued an order requesting
supplemental briefing in the instant case. On August 9, 2001, the District
Court issued its decision upholding the validity of the challenged
regulations and dissolving the February 9, 2001 order granting the
preliminary injunction. National Mining Ass'n v. Chao, Civ. No. 00-3086 (D.D.C. Aug. 9, 2001). The court's decision renders moot those
arguments made by the parties regarding the impact of the challenged
regulations.
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2)The record contains the results of a September 8, 1993 pulmonary function study. Claimant's
Exhibit 1. Although the report listing the results of claimant's September 8, 1993 pulmonary function study identifies Dr.
Rubio as claimant's physician, Dr. Russell actually provided the interpretation of the results. See Claimant's Exhibit
1. Dr. Russell interpreted the results as revealing "severe obstructive pulmonary disease which may be related primarily
to the long history of cigarette smoking." Id. Although Dr. Russell stated that a mild restriction could not be ruled
out, he noted that this was suggested only by the vital capacity results. Id.
Dr. Rubio interpreted the results of claimant's subsequent December 28, 1993 and October 6, 1994 pulmonary
function studies. Claimant's Exhibit 1. Dr. Rubio interpreted each of these studies as revealing a severe obstructive
ventilatory defect. Id. Dr. Rubio failed to note any evidence of a restrictive impairment. Id.
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3)Claimant contends that Dr. Rubio's opinion is entitled to greater weight based upon his status
as the miner's treating physician. The United States Court of Appeals for the Sixth Circuit has held that the opinions of
treating physicians are entitled to greater weight than those of non-treating physicians. See Tussey v. Island
Creek Coal Co., 982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993). However, because the administrative law judge properly
found that Dr. Rubio's opinion was not sufficiently reasoned, the administrative law judge was not required to accord
greater weight to his opinion based upon his status as claimant's treating physician. See generally Griffith v.
Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir. 1995).
Moreover, contrary to claimant's assertion, an administrative law judge is not required to defer to a physician with
superior qualifications. See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc).
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NOTE: This is an UNPUBLISHED BLA Document.
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