BRB No. 00-1078 BLA
BERNARD MATTINGLY )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/30/2001
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits of Thomas F. Phalen,
Jr., Administrative Law Judge, United States Department of Labor.
Edmond Collett, Hyden, Kentucky, for claimant.
Dorothy L. Page (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: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits (00-BLA-0271) of
Administrative Law Judge Thomas F. Phalen, Jr. on a duplicate claim[1] 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).[2] The
administrative law judge adjudicated this duplicate claim[3] pursuant to 20 C.F.R. Part 718 (2000) and credited the parties'
stipulation that the miner worked in qualifying coal mine employment for seven
years and seven months. The administrative law judge considered the newly
submitted evidence and determined that, because claimant failed to establish the
existence of pneumoconiosis or total respiratory disability, he failed to establish
a material change in conditions pursuant to 20 C.F.R. §725.309 (2000).
Accordingly, the administrative law judge denied benefits.
On appeal, claimant argues that the administrative law judge erred by failing
to find the existence of pneumoconiosis and total respiratory disability. The
Director, Office of Workers' Compensation Programs, (the Director) responds, urging
affirmance of the denial of benefits.
Pursuant to a lawsuit challenging revisions to forty-seven of the regulations
implementing the Act, the United States District Court for the District of Columbia
granted limited injunctive relief and stayed, for the duration of the lawsuit, 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, determines that the
regulations at issue in the lawsuit will not affect the outcome of the case.
National Mining Association v. Chao, No. 1:00CV03086 (D.D.C. Feb. 9,
2001)(order granting preliminary injunction). In the present case, the Board
established a briefing schedule by order issued on May 18, 2001, to which the
Director responded asserting that the regulations at issue do not affect the
outcome of this case.[4] Based on the brief
submitted by the Director and our review, we hold that the disposition of this case
is not impacted by the challenged regulations. Therefore, we will proceed to
adjudicate the merits of this appeal.[5]
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 the applicable law, they are
binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as
incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
and Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part, a claimant must establish that he suffers from
pneumoconiosis, that his pneumoconiosis arose out of coal mine employment, and that
his pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202,
718.203, 718.204. Failure to establish any one of these elements precludes
entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987); Perry v.
Director, OWCP, 9 BLR 1-1 (1986) (en banc).
The United States Court of Appeals for the Sixth Circuit, within whose
jurisdiction this case arises, has articulated the standard for adjudicating
duplicate claims, holding that "to assess whether a material change in condition
is established, the administrative law judge must consider all of the new evidence,
favorable and unfavorable, to determine whether the miner has proven at least one
of the elements of entitlement previously adjudicated against him." Sharondale
Corp. v. Ross, 42 F.3d 993, 997-998, 19 BLR 2-10, 2-18 (6th Cir. 1994);
see 20 C.F.R. §725.309.
Claimant first contends that the administrative law judge erred by finding
that the x-ray evidence was insufficient to establish the existence of
pneumoconiosis by relying too heavily on the qualifications of the physicians and
the numerical superiority of the negative x-ray interpretations. Contrary to
claimant's argument, however, where the x-ray evidence is in conflict,
consideration shall be given to the readers' radiological qualifications. 20
C.F.R. §718.202(a)(1); Trent, supra; Dixon v. North Camp Coal
Co., 8 BLR 1-344 (1985); Roberts v. Bethlehem Mines Corp., 8 BLR 1-211
(1985). Moreover, in the instant case the administrative law judge properly
determined that the x-ray evidence was insufficient to establish the existence of
pneumoconiosis inasmuch as the only interpretations of the newly submitted x-ray
were negative for the existence of pneumoconiosis. See Director, OWCP v.
Greenwich Collieries [Ondecko], 512 U.S. 267, 18 BLR 2A-1 (1994),
aff'g sub nom. Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 17 BLR
2-64 (3d Cir. 1993); Langerud v. Director, OWCP, 9 BLR 1-101, 1-103 (1986);
Decision and Order at 7; Director's Exhibits 8, 10. We, therefore, affirm the
administrative law judge's finding that the newly submitted x-ray evidence was
insufficient to establish the existence of pneumoconiosis inasmuch as this
determination was supported by the record.
Claimant also argues that the administrative law judge irrationally found that
the medical opinions of Dr. Yalamanchi and of the physicians from Mary Breckinridge
Hospital, made subsequent to the prior denial, were insufficient to establish the
existence of pneumoconiosis because these physicians treated claimant and rendered
documented opinions. We disagree. The Sixth Circuit has held that the
administrative law judge is not required to accord greater weight to the opinion
of a treating physician, where, as in the case at bar, the opinion contains
deficiencies. Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111
(6th Cir. 1995); accord Lango v. Director, OWCP, 104 F.3d 573, 21 BLR
2-12 (3d Cir. 1997); Peabody Coal Co. v. McCandless, F.3d ,
BLR slip op. at 3 (7th Cir. 2001). The administrative law judge,
within a permissible exercise of his discretion, discredited the diagnosis of
"black lung" contained in Dr. Yalamanchi's report and the hospitalization records
inasmuch as "there was absolutely no explanation" for the diagnosis. See
Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983); Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Stark v.
Director, OWCP, 9 BLR 1-36, 1-37 (1986); Hess v. Clinchfield Coal Co.,
7 BLR 1-295, 1-296 (1984); Decision and Order at 8; Director's Exhibits 7, 15.
Accordingly, we affirm the administrative law judge's determination that Dr.
Yalamanchi's report and the records of Mary Breckinridge Hospital were not well
documented or reasoned. See Fields v. Island Creek Coal Co., 10 BLR 1-19
(1987); Lucostic v. U.S. Steel Corp., 8 BLR 1-46 (1985); Decision and Order
at 8. Consequently, we affirm the administrative law judge's determination that
the newly submitted medical opinion evidence was insufficient to establish the
existence of pneumoconiosis.
Claimant additionally argues that the administrative law judge erroneously
failed to consider the exertional requirements of claimant's usual coal mine work
in finding that claimant was not totally disabled. Claimant contends further that
the administrative law judge failed to address claimant's age, education, and
limited work experience, all factors precluding claimant from obtaining gainful
employment outside the coal mine industry, in his total disability assessment.
Claimant's arguments lack merit. It is well established that "consideration of
the exertional requirements of a miner's work is unnecessary' in a case where the
[administrative law judge] credited the reports of physicians who found that the
miner had no respiratory or pulmonary impairment at all, and therefore, from a
respiratory standpoint, could perform any kind of manual labor'." Lane v. Union
Carbide Corp., 105 F.3d 166, 172, 21 BLR 2-34, 2-45-46 (4th Cir. 1997); see
Eagle v. Armco, Inc., 943 F.2d 509, 15 BLR 2-201 (4th Cir. 1991); Budash v.
Bethlehem Mines Corp., 16 BLR 1-27, 1-29 (1991)(en banc); Onderko v.
Director, OWCP, 14 BLR 1-2, 1-4 (1989)(administrative law judge may infer total
disability when comparing exertional requirements of miner's coal mine job with
physician's assessment of his working capability). In the instant case, the
administrative law judge rationally found that the medical opinion of Dr. Wicker
was insufficient to demonstrate total disability because Dr. Wicker stated that he
was unable to assess claimant's respiratory capacity due to claimant's failure to
comply with the testing protocol. See Gee v. W.G. Moore & Son, 9 BLR 1-4
(1986); King v. Consolidation Coal Co., 8 BLR 1-262 (1985); Decision and
Order at 8; Director's Exhibit 8. Hence, the administrative law judge, within a
rational exercise of his discretion, found that Dr. Wicker's opinion was
insufficient to demonstrate total respiratory disability inasmuch as Dr. Wicker was
unable to address whether claimant suffers from any disability. Thus, we affirm
the administrative law judge's determination that the medical opinion evidence
failed to demonstrate total respiratory disability. See Milburn Colliery
Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998); Jewell Smokeless
Coal Corp. v. Street, 42 F.3d 241, 19 BLR 2-1 (4th Cir. 1994)(to establish
eligibility for benefits, miner must prove that he has totally disabling
respiratory condition).
Inasmuch as the administrative law judge's finding, that because claimant
failed to establish the existence of pneumoconiosis and total disability, he failed
to demonstrate a material change in conditions, is rational, supported by
substantial evidence, and contains no reversible error, we affirm his
determination. See 20 C.F.R. §725.309; Ross, supra.
Accordingly, the Decision and Order Denying Benefits of the administrative law
judge is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Claimant is Bernard Mattingly, the miner, who filed his
first application for benefits with the Social Security Administration (SSA)
on April 23, 1971, which was finally denied on April 18, 1973. Director's
Exhibit 17. The miner took no further action on this claim, and
subsequently, filed a duplicate application for benefits with SSA on
February 17, 1976. Director's Exhibit 17. The most recent decision on the
merits of this claim was issued by Administrative Law Judge W. Ralph
Musgrove who determined that claimant failed to establish the existence of
pneumoconiosis on January 22, 1991. Claimant appealed and the Benefits
Review Board affirmed the denial of benefits. Mattingly v. Director,
OWCP, BRB No. 91-0843 BLA (Sep. 28, 1992)(unpub.); Director's Exhibit
17. Subsequently, claimant appealed the Board's decision to the United
States Court of Appeals for the Sixth Circuit, within whose jurisdiction
this case arises, and the court dismissed claimant's appeal for want of
prosecution. Mattingly v. Director, OWCP, No. 92-4245 (6th Cir. Jan.
21, 1993)(unpub. Order); Director's Exhibit 17. Claimant did not further
pursue this claim. On February 8, 1999, claimant filed his third
application for benefits. Director's Exhibit 1.
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2) 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.
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3) Although the administrative law judge incorrectly stated that claimant filed his first
claim on February 17, 1976, rather than April 23, 1971, we deem this error harmless inasmuch as it is not
dispositive of the instant claim. See Larioni v. Director, OWCP, 6 BLR 1-1276 (1984); Decision and
Order at 2.
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4) Pursuant to the Board's instructions, the failure of a party to submit a brief within
twenty days following receipt of the Board's Order issued on May 18, 2001, would be construed as a position that
the challenged regulations will not affect the outcome of this case.
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5) We affirm the administrative law judge's findings pursuant to Sections 718.202(a)(2),
(3) and 718.204(c)(1)-(3) (2000) inasmuch as these determinations are unchallenged on appeal. See Coen v.
Director, OWCP, 7 BLR 1-30, 1-33 (1984); Skrack v. Director, OWCP, 6 BLR 1-710 (1983);
Decision and Order at 7, 8 respectively.
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NOTE: This is an UNPUBLISHED BLA Document.
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