BRB No. 00-1093 BLA
BOBBY E. SIMPSON )
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Claimant-Petitioner )
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v. )
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TROJAN MINING INCORPORATED ) DATE ISSUED:08/30/2001
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and )
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TRAVELER'S INSURANCE COMPANY )
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Employer/Carrier- )
Respondents )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Joseph E. Kane, Administrative Law
Judge, United States Department of Labor.
Bobby E. Simpson, Hellier, Kentucky, pro se.
J. Logan Griffith (Wells, Porter, Schmitt & Jones), Paintsville, Kentucky, for
employer.
Timothy S. Williams (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, without the assistance of counsel, appeals the Decision and Order
(00-BLA-0254) of Administrative Law Judge Joseph E. Kane denying benefits on a
duplicate 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] The administrative law judge found at least
twenty-five years of coal mine employment and, based on the date of filing,
adjudicated the claim pursuant to 20 C.F.R. Part 718. Decision and Order at 4, 10.
After determining that the instant claim was a duplicate claim,[2] the administrative law judge noted the proper
standard and found that the newly submitted evidence was insufficient to establish
either the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4) (2000) or total disability due to pneumoconiosis pursuant to 20 C.F.R.
§718.204(c)(1)-(4) (2000). Decision and Order at 10-12. Consequently, the
administrative law judge concluded that claimant failed to establish a material
change in conditions pursuant to 20 C.F.R. §725.309 (2000). Decision and
Order at 12. Accordingly, benefits were denied. On appeal, claimant generally
contends that the administrative law judge erred in failing to award benefits.
Employer responds urging affirmance of the denial of benefits. The Director,
Office of Workers' Compensation Programs, has filed a letter indicating that he
would not participate in this appeal.[3]
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 has
responded asserting that the outcome of this case will not be affected by the revised regulations. Claimant and employer
have not responded to the Board's order.[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,
the Board will proceed to adjudicate the merits of this appeal.
In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue raised to be whether
the Decision and Order below is supported by substantial evidence. McFall v. Jewell Ridge Coal Corp., 12 BLR
1-176 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must affirm the administrative law judge's
findings of fact and conclusions of law if they are rational, supported by substantial evidence, and consistent with applicable
law. 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits in a living miner's claim filed
pursuant to 20 C.F.R. Part 718, claimant must establish the existence of
pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that
the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202,
718.203, 718.204 (2000); Gee v. W.G. Moore and Sons, 9 BLR 1-4 (1986)(en
banc). 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).
After consideration of the administrative law judge's Decision and Order, the
arguments raised on appeal and the evidence of record, we conclude that the
administrative law judge's Decision and Order is supported by substantial evidence
and contains no reversible error therein. Considering the newly submitted evidence,
the administrative law judge rationally found that claimant failed to establish a
material change in conditions at 20 C.F.R. §725.309 (2000). See Piccin v.
Director, OWCP, 6 BLR 1-616 (1983). The administrative law judge correctly
noted that the previous claim was denied as claimant did not establish the
existence of pneumoconiosis or that he was totally disabled due to pneumoconiosis.
Decision and Order at 3, 9-10; Director's Exhibit 21. The United States Court of
Appeals for the Sixth Circuit has held that in assessing whether the evidence is
sufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309 (2000), an administrative law judge must consider all of the new
evidence, favorable and unfavorable to claimant, and determine whether claimant has
proven at least one of the elements of entitlement previously adjudicated against
him.[5] See Sharondale Corp. v. Ross, 42 F.3d 993,
19 BLR 2-10 (6th Cir. 1994).
Considering the newly submitted evidence to determine if a material change in
conditions was established, the administrative law judge permissibly found that the
evidence was insufficient to establish the existence of pneumoconiosis pursuant to
Section 718.202(a) (2000). Piccin, supra. The administrative law judge, in
the instant case, permissibly found the newly submitted evidence insufficient to
establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(1) (2000).
The administrative law judge noted that the six newly submitted x-ray
interpretations were read either by B-readers or B-readers with additional
qualification as board-certified radiologists. Decision and Order at 5. The
administrative law judge properly concluded that the x-ray evidence of record was
insufficient to establish the existence of pneumoconiosis at Section 718.202(a)(1)
(2000) as all of the newly submitted x-ray readings were negative. Director's
Exhibits 8, 9, 24; Employer's Exhibits 1, 2; Decision and Order at 5, 10; Staton
v. Norfolk & Western Railroad Co., 65 F.3d 55, 19 BLR 2-271 (6th Cir. 1995);
Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir. 1993);
Edmiston v. F & R Coal Co., 14 BLR 1-65 (1990); Clark v. Karst-Robbins
Coal Co., 12 BLR 1-149 (1988)(en banc); Trent, supra; Roberts
v. Bethlehem Mines Corp., 8 BLR 1-211 (1985). We, therefore, affirm the
administrative law judge's finding that the newly submitted x-ray evidence is
insufficient to establish the existence of pneumoconiosis pursuant to Section
718.202(a)(1) (2000) as it is supported by substantial evidence.[6]
Further, we affirm the administrative law judge's finding that the newly submitted evidence of record is insufficient
to establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(3) (2000) since none of the presumptions set
forth therein are applicable to the instant claim.[7] See 20 C.F.R.
§§718.304, 718.305, 718.306 (2000); Langerud v. Director, OWCP, 9 BLR 1-101 (1986);
Decision and Order at 10.
With respect to 20 C.F.R. §718.202(a)(4) (2000), the administrative law judge properly considered the entirety
of the newly submitted medical opinion evidence of record and rationally concluded that it was insufficient to establish the
existence of pneumoconiosis. Piccin, supra. The administrative law judge must determine the credibility of
the evidence of record and the weight to be accorded this evidence when deciding whether a party has met its
burden of proof. See Mabe v. Bishop Coal Co., 9 BLR 1-67 (1986). Moreover, an administrative law judge
is not required to accord determinative weight to an opinion solely because it is offered by a treating or attending physician.
Tedesco v. Director, OWCP, 18 BLR 1-103 (1994); Clark, supra; Hall v. Director,
OWCP, 8 BLR 1-193 (1985); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985). Additionally, a
physician's opinion based upon his own tests and observations, or the review of other objective test results, may
be substantial evidence in support of an administrative law judge's findings. Onderko v. Director, OWCP,
14 BLR 1-2 (1989); Wetzel, supra.
The administrative law judge, in the instant case, properly considered the relevant evidence of record and
permissibly accorded greater weight to the opinion of Dr. Fino, who opined that claimant did not have pneumoconiosis
or any other occupationally acquired pulmonary condition, than to the contrary opinion of Dr. Gibson, in light of his superior
qualifications and as the physician's opinion is documented, reasoned and based not only on a physical examination but
also on the review of extensive medical evidence. Lafferty v. Cannelton Industries, Inc., 12 BLR 1-190 (1989);
Clark, supra; Dillon v. Peabody Coal Co., 11 BLR 1-113 (1988); Fields v. Island Creek Coal Co.,
10 BLR 1-19 (1987); Perry, supra; Stark v. Director, OWCP, 9 BLR 1-36 (1986); King v.
Consolidation Coal Co., 8 BLR 1-262 (1985); Hall, supra; Wetzel, supra; Kuchwara v. Director,
OWCP, 7 BLR 1-167 (1984); Decision and Order at 11; Director's Exhibits 7, 8; Employer's Exhibit 1. Moreover, the
administrative law judge rationally accorded less weight to the opinion of Dr. Gibson as the physician's opinion is not well-documented and well-reasoned since Dr. Gibson does not explain how the objective medical evidence supports his
conclusions or upon what medical evidence he relied in rendering his diagnosis, and to the opinion of Dr. Younes as the
physician does not relate his diagnosis of chronic bronchitis to coal dust exposure. See 20 C.F.R. §718.201
(2000); Tedesco, supra; Worhach v. Director, OWCP, 17 BLR 1-105 (1993); Lafferty, supra;
Clark, supra; Dillon, supra; Fields, supra; Perry, supra; Wetzel, supra;
Hutchens v. Director, OWCP, 8 BLR 1-16 (1985); Kuchwara, supra; Piccin, supra; Decision and
Order at 11; Director's Exhibits 7, 8; Employer's Exhibit 1. Additionally, although Dr. Gibson, as noted by the
administrative law judge, is claimant's treating physician, the administrative law judge has provided valid reasons for
finding his opinion entitled to less weight. See Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17 BLR 2-16 (6th
Cir. 1993); Wetzel, supra; Decision and Order at 11.
In addressing the newly submitted evidence of record to determine if claimant
established a material change in conditions, the administrative law judge, in the instant case,
considered the entirety of the relevant medical evidence and acted within his discretion in concluding that claimant failed
to establish the existence of a totally disabling respiratory impairment. See Black Lung Benefits Amendments, 65
Fed. Reg. 80,049(2000), to be codified at 20 C.F.R. §718.204(b); Decision and Order at 12; Piccin, supra.
The administrative law judge properly found that total disability pursuant to Section 718.204(c)(1)-(2) (2000) had not been
established, since all of the pulmonary function and blood gas study evidence of record produced non-qualifying values.[8] Decision and Order at 12; Director's Exhibit 8; Employer's Exhibit 1. Additionally,
the administrative law judge properly found that the record indicates that no physician diagnosed cor pulmonale with right
sided congestive heart failure. Decision and Order at 12; Newell v. Freeman United Coal Mining Co., 13 BLR 1-37
(1989).
With respect to 20 C.F.R. §718.204(c)(4) (2000), the administrative law judge properly considered the entirety
of the medical opinion evidence of record and rationally concluded that the medical opinion evidence did not support a
finding that claimant is totally disabled from a respiratory standpoint. Perry, supra; Piccin, supra; Decision
and Order at 12. The administrative law judge rationally considered the opinions of record and acted within his discretion,
as fact-finder, in finding the opinions of Drs. Younes and Fino, opining that claimant is not totally disabled by a pulmonary
or respiratory condition, to be sufficient to prevent entitlement as their opinions are well reasoned and documented. See
Collins v. J & L Steel, 21 BLR 1-181 (1999); Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993);
Clark, supra; Dillon, supra; Martinez v. Clayton Coal Co., 10 BLR 1-24 (1987); Fields,
supra; Gee, supra; Perry, supra; Wetzel, supra; Lucostic v. United States Steel Corp.,
8 BLR 1-46 (1985); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291 (1984); Decision and Order at 12; Director's
Exhibit 8; Employer's Exhibit 1. Additionally, the administrative law judge properly found that Dr. Gibson,
claimant's treating physician, did not offer an opinion as to the existence of a totally disabling pulmonary
impairment. See Tedesco, supra; Tussey, supra; Clark, supra; Wetzel, supra;
Kuchwara, supra; Decision and Order at 12; Director's Exhibit 7.
Claimant has the general burden of establishing entitlement and bears the risk
of non-persuasion if his evidence is found insufficient to establish a crucial
element. See Trent, supra; Perry, supra; Oggero v. Director,
OWCP, 7 BLR 1-860 (1985); White v. Director, OWCP, 6 BLR 1-368 (1983).
As the administrative law judge permissibly concluded that the newly submitted
evidence does not establish that claimant has pneumoconiosis or is totally
disabled, claimant has not met his burden of proof on all the elements of
entitlement. Ross, supra; Clark, supra; Trent, supra;
Perry, supra. The administrative law judge is empowered to weigh the medical
evidence and to draw his own inferences therefrom, see Maypray v. Island
Creek Coal Co., 7 BLR 1-683 (1985), and the Board may not reweigh the evidence
or substitute its own inferences on appeal. See Clark, supra;
Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1988); Worley v. Blue Diamond Coal
Co., 12 BLR 1-20 (1988). Furthermore, since the determination of whether
claimant has pneumoconiosis or a totally disabling respiratory impairment is
primarily a medical determination, claimant's testimony alone, under the
circumstances of this case, could not alter the administrative law judge's finding.
Anderson, supra. Consequently, we affirm the administrative law
judge's finding that the newly submitted evidence of record is insufficient to
establish the existence of pneumoconiosis or total disability pursuant to Sections
718.202(a) and 718.204(c) (2000) as it is supported by substantial evidence and is
in accordance with law. Inasmuch as claimant has failed to establish a material
change in conditions pursuant to 20 C.F.R. §725.309 (2000), we affirm the
denial of benefits. Ross, supra.
Accordingly, the administrative law judge's Decision and Order denying
benefits 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)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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2) Claimant filed his initial claim for benefits on October 1, 1992, which was finally denied on August 27, 1995, as
claimant failed to establish the existence of totally disabling pneumoconiosis. Director's Exhibit 21. Claimant filed the
instant claim on April 13, 1999, which was denied by the District Director on July 22, 1999 and September 27, 1999.
Director's Exhibits 1, 11, 12.
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3)As the administrative law judge's length of coal mine employment determination is favorable
to claimant and unchallenged on appeal, it is affirmed. Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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4)Pursuant to the Board's instructions, the failure of a party to submit a brief within 20 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)This case arises within the jurisdiction of the United States Court of Appeals for the Sixth Circuit
as the miner was employed in the coal mine industry in the Commonwealth of Kentucky. See Shupe v. Director,
OWCP, 12 BLR 1-200 (1989)(en banc);Director's Exhibit 2.
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6)Although the administrative law judge, in the instant case, failed to specifically address the
existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(2) (2000), a remand is not required as the record is
devoid of any biopsy or autopsy evidence, thus precluding claimant from establishing the existence of pneumoconiosis
pursuant to this subsection. See 20 C.F.R. §718.202(a)(2) (2000); Larioni v. Director, OWCP, 6 BLR
1-1276 (1984).
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7)The presumption at 20 C.F.R. §718.304 (2000) is inapplicable because there is
no evidence of complicated pneumoconiosis in the record. Claimant is not entitled to the presumption at 20
C.F.R. §718.305 (2000) because this claim was filed after January 1, 1982. See 20 C.F.R.
§718.305(e) (2000); Director's Exhibit 1. Lastly, this claim is not a survivor's claim; therefore, the
presumption at 20 C.F.R. §718.306 is also inapplicable.
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8)A "qualifying" pulmonary function study or blood gas study yields values that are equal
to or less than the appropriate values set out in the tables at 20 C.F.R. Part 718, Appendices B, C, respectively.
A "non-qualifying" study exceeds those values. See 20 C.F.R. §718.204(c)(1), (c)(2) (2000).
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NOTE: This is an UNPUBLISHED BLA Document.
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