BRB No. 01-0113 BLA
BERTICE COLEMAN )
)
Claimant-Petitioner )
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v. )
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ISLAND CREEK COAL COMPANY ) DATE ISSUED:08/30/2001
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Employer-Respondent )
)
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 Denying Benefits of Daniel F. Solomon,
Administrative Law Judge, United States Department of Labor.
Bertice Coleman, Vansant, Virginia, pro se.
Mary Rich Maloy (Jackson & Kelly PLLC), Charleston, West Virginia, for
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel,[1] appeals the Decision and Order Denying Benefits (00-BLA-0630) of
Administrative Law Judge Daniel F. Solomon 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).[2] The administrative law judge found that the
instant claim constituted a duplicate claim[3]
pursuant to 20 C.F.R. §725.309 (2000), and that the case was thus governed by
the standard enunciated by the United States Court of Appeals for the Fourth
Circuit, within whose jurisdiction this case arises, in Lisa Lee Mines v.
Director, OWCP [Rutter], 86 F.3d 1358, rev'g en banc 57 F.3d 402,
19 BLR 2-223 (4th Cir. 1995); cert. denied, 117 S.Ct. 763 (1997). Decision
and Order at 3-4. The administrative law judge proceeded to find that the newly
submitted evidence, i.e., that evidence submitted subsequent to the previous
denial, failed to establish a totally disabling respiratory impairment pursuant to
20 C.F.R. §718.204(c)(2000). Decision and Order at 5-16. The administrative
law judge further found that the newly submitted evidence failed to establish the
presence of a totally disabling respiratory impairment due to pneumoconiosis
pursuant to 20 C.F.R. §718.204(b)(2000). The administrative law judge thus
concluded that inasmuch as the failure to establish a totally disabling respiratory
impairment defeated entitlement in claimant's previous claim, the failure to
establish that element in the instant claim mandated a denial of benefits on the
basis of the failure to establish a material change in conditions pursuant to
Section 725.309 (2000). Decision and Order at 17. Accordingly, benefits were
denied.
On appeal, claimant contends that he is entitled to benefits. Employer
responds, urging affirmance of the denial of benefits. The Director, Office of
Workers' Compensation Programs (the Director), has not filed a brief in this
appeal.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised on appeal to be whether the Decision and Order below is
supported by substantial evidence. McFall v. Jewell Ridge Coal Co., 12 BLR
1-176 (1989); Stark v. Director, OWCP, 9 BLR 1-361 (1986). We must affirm
the administrative law judge's Decision and Order if the findings of fact and
conclusions of law are rational, supported by substantial evidence, and in
accordance with 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).
After careful consideration of the administrative law judge's Decision and
Order and the relevant evidence of record, we conclude that the administrative law
judge's decision denying benefits is supported by substantial evidence, contains
no reversible error and, therefore, it is affirmed. In Rutter,
supra, the Fourth Circuit held that, in order to establish a material change
in conditions pursuant to Section 725.309 (2000), claimant must establish at least
one of the elements of entitlement adjudicated against him in the past. Because
claimant was previously denied benefits on the basis of having failed to establish
a totally disabling respiratory impairment, see Coleman, slip op. at
2-3, the administrative law judge properly determined that, in order to establish
a material change in conditions pursuant to Section 725.309 (2000), the burden
rested with claimant to affirmatively establish the existence of a totally
disabling respiratory impairment pursuant to Section 718.204(c)(2000). See
20 C.F.R. §718.204(b); Rutter, supra; see generally
Director, OWCP v. Greenwich Collieries [Ondecko], 114 S.Ct. 2251, 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).
In finding that the evidence of record failed to demonstrate total disability
pursuant to Section 718.204(c)(1)(2000), the administrative law judge concluded
that, notwithstanding the fact that the newly submitted evidence consisted of three
qualifying pulmonary function studies,[4]
Director's Exhibits 6, 24; Employer's Exhibit 3, claimant was unable to carry his
burden at this subsection because none of these qualifying studies were deemed
credible by well-qualified physicians. Decision and Order at 8-12. The
administrative law judge considered the opinions of Drs. Hippensteel, Castle, Fino,
Zaldivar and Michos, all of whom reviewed the studies and found that they were not
valid indicators of the state of claimant's disability based on the poor or
inconsistent effort of claimant in undergoing the test. Director's Exhibits 8, 20,
24, 25; Employer's Exhibit 3.[5] Consultive
opinions by well-qualified physicians which call into question the validity of a
pulmonary function study constitute relevant evidence and may be used, if credible,
to discredit the study. See Director, OWCP v. Siwiec, 894 F.2d 635,
13 BLR 2-259 (3d Cir. 1990); Director, OWCP v. Mangifest, 826 F.2d 1318, 10
BLR 2-220 (3d Cir. 1987); Winchester v. Director, OWCP, 9 BLR 1-177 (1986);
see generally Old Ben Coal Co. v. Battram, 7 F.3d 1273, 18 BLR 2-42
(7th Cir. 1993); Peabody Coal Co. v. Director, OWCP, 972 F.2d 880, 16 BLR
2-129 (7th Cir. 1992); Ziegler Coal Co. v. Sieberg, 839 F.2d 1280 (7th Cir.
1988); Dotson v. Peabody Coal Co., 846 F.2d 1134 (7th Cir. 1988); Siegel
v. Director, OWCP, 8 BLR 1-156 (1985)(2-1 opinion with Brown, J. dissenting);
Burich v. Jones & Laughlin Steel Corp., 6 BLR 1-1189 (1984). In the absence
of any credible newly submitted qualifying pulmonary function studies, claimant was
thus precluded from demonstrating the presence of a totally disabling respiratory
impairment pursuant to Section 718.204(c)(1)(2000), and we thus affirm the
administrative law judge's finding that claimant was unable to demonstrate a
totally disabling respiratory impairment at this subsection. See 20 C.F.R.
§718.204(b)(2)(i); 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).
In finding that the newly submitted blood gas studies failed to demonstrate
the presence of a totally disabling respiratory impairment pursuant to Section
718.204(c)(2)(2000), the administrative law judge found that, of these three newly
submitted studies, only one produced qualifying values, Director's Exhibit 9, while
the remaining two studies, Director's Exhibit 24; Employer's Exhibit 3, were non-qualifying. Decision and Order at 12-13. Thus, the administrative law judge, in
a permissible exercise of his discretion, found that the weight of the blood gas
study evidence failed to affirmatively demonstrate the presence of a totally
disabling respiratory impairment. See 20 C.F.R. §718.204(b)(2)(ii);
see Ondecko, supra.
We further affirm the administrative law judge's determination that claimant
failed to demonstrate the presence of a totally disabling respiratory impairment
pursuant to 718.204(c)(3)(2000) as there is no evidence of cor pulmonale with
right-sided congestive heart failure. See 20 C.F.R.
§718.204(b)(2)(iii); Newell v. Freeman United Coal Mining Co., 13 BLR
1-37 (1989); rev'd on other grounds, 933 F.2d 510 15 BLR 2-124 (7th Cir.
1991).
Finally, we affirm the administrative law judge's determination that claimant
failed to demonstrate the presence of a totally disabling respiratory impairment
pursuant to Section 718.204(c)(4)(2000). In reaching this determination, the
administrative law judge considered all the newly submitted medical opinion
evidence and, permissibly accorded greatest weight to the opinions of Drs. Castle
and Hippensteel, both of whom concluded that claimant was able to return to his
previous coal mine employment from a pulmonary standpoint and suffered from no
pulmonary or respiratory disability, based on their superior credentials.[6] Director's Exhibit 24; Employer's Exhibit 3;
see Martinez v. Clayton Coal Co., 10 BLR 1-24 (1987); Wetzel v.
Director, OWCP, 8 BLR 1-139 (1985); see also Milburn Colliery Co. v.
Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998). Further, the administrative
law judge, also permissibly concluded that Dr. Forehand's opinion, that claimant
was unable to return to his previous coal mine employment due to pulmonary
disability, was unreasoned and entitled to little weight, see Director's
Exhibit 7; Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en
banc); Peskie v. United States Steel Corp., 8 BLR 1-126 (1985);
Lucostic v. United States Steel Corp., 8 BLR 1-46 (1985), and failed to
address evidence of claimant's other medical conditions. See Hicks,
supra; Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 21 BLR
2-269 (4th Cir. 1997); see generally Stark v. Director, OWCP, 9 BLR
1-36 (1989); Hutchens v. Director, OWCP, 8 BLR 1-16 (1985)(administrative
law judge may accord less weight to medical opinions which present less than
complete picture of miner's health). Because the administrative law judge has
addressed all the relevant medical evidence at Section 718.204(c)(4), see
20 C.F.R. §718.204(b)(2)(iv), and provided an affirmable basis for his
determinations, we affirm his conclusion that the medical opinion evidence failed
to demonstrate the presence of a totally disabling respiratory impairment. 20
C.F.R. §718.204(b)(2)(iv); see Ondecko, supra. We thus affirm
the administrative law judge's determination that the newly submitted medical
evidence failed to establish the existence of a totally disabling respiratory
impairment pursuant to Section 718.204(c)(2000), see 20 C.F.R.
§718.204(b); Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987);
Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231 (1987); Shedlock
v. Bethlehem Mines Corp., 9 BLR 1-195 (1986). Because we affirm the
administrative law judge's finding that total disability is not established, we
need not consider the administrative law judge's causation finding, and we affirm
the administrative law judge's determination that the newly submitted medical
evidence failed to establish a material change in conditions pursuant to Section
725.309 (2000); see Rutter, 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
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1) Ron Carson, a benefits counselor with Stone Mountain
Health Services of St. Charles, Virginia, has requested, on behalf of
claimant, that the Board review the administrative law judge's decision, but
Mr. Carson is not representing claimant on appeal. See Shelton v. Claude
V. Keen Trucking Co., 19 BLR 1-88 (1995)(Order).
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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.
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 any arguments
made by the parties regarding the impact of the challenged regulations.
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3) Claimant initially filed a claim for benefits on August
9, 1985 which was finally denied in a Decision and Order issued by
Administrative Law Judge Henry W. Sayrs on April 26, 1988. Director's
Exhibit 29. Claimant subsequently filed a second claim on April 4, 1994.
Director's Exhibit 30. In a Decision and Order issued August 29, 1996,
Administrative Law Judge Pamela Lakes Wood denied benefits. Judge Wood
concluded that the evidence was insufficient to establish total respiratory
disability pursuant to 20 C.F.R. §718.204(c)(2000) and thus claimant
failed to establish a material change in conditions pursuant to 20 C.F.R.
§725.309 (2000). The Board affirmed this denial of benefits.
Coleman v. Island Creek Coal Co., BRB No. 96-1657 BLA(Jun. 30,
1997)(unpub.). On April 27, 1999, claimant filed the instant duplicate
claim.
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4) 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. §718.204, Appendices B, C,
respectively. A "non-qualifying" study exceeds those values. See 20
C.F.R. §718.204(c)(1), (2)(2000); 20 C.F.R. §718.204(b)(2)(i),
(ii).
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5) Two of the qualifying studies, Director's Exhibit 24
and Employer's Exhibit 3 were performed by Dr. Castle and Dr.
Hippensteel.
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6) While both Drs. Hippensteel and Castle acknowledge that
claimant was disabled from a "whole-man" standpoint, neither physician
attributes any disability to pulmonary or respiratory problems.
Accordingly, their opinions are not supportive of claimant's burden. See
Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241, 19 BLR 2-1 (4th Cir.
1994); Beatty v. Danri Corp., 49 F.3d 993, 19 BLR 1-136 (3d Cir.
1995).
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NOTE: This is an UNPUBLISHED BLA Document.
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