BRB No. 02-0218 BLA
KENNETH M. HUBBARD )
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Claimant-Petitioner )
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v. )
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CLINCHFIELD COAL COMPANY ) DATE ISSUED:08/19/2002
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Employer-Respondent )
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and )
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ACORDIA EMPLOYERS SERVICES )
CORPORATION )
)
Carrier )
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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 Denying Benefits of Mollie W. Neal,
Administrative Law Judge, United States Department of Labor.
Daniel Sachs (Capital Law Center, P.C.), Arlington, Virginia, for
claimant.
Timothy W. Gresham, H. Ashby Dickerson (Penn, Stuart & Eskridge),
Abingdon, Virginia, for employer.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits (00-BLA-1058) of
Administrative Law Judge Mollie W. Neal 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 this request for modification,[2] the administrative law judge accepted employer's
stipulations to twenty-six years of coal mine employment and a totally disabling
respiratory impairment, but, considering the newly submitted evidence along with
evidence previously submitted, found that claimant failed to establish the
existence of pneumoconiosis or total disability due to pneumoconiosis. The
administrative law judge, therefore, denied claimant's request for modification and
denied benefits.
On appeal, claimant contends that the administrative law judge erred in
failing to credit the opinions of Dr. Smiddy, claimant's treating physician, that
claimant was totally disabled due to pneumoconiosis. Employer responds, urging
affirmance of the Decision and Order Denying Benefits of the administrative law
judge as supported by substantial evidence. The Director, Office of Workers'
Compensation Programs (the Director), is not participating in this appeal.
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).
In order to establish entitlement to benefits in a living miner's claim
pursuant to 20 C.F.R. Part 718, claimant must prove that he suffers from
pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that
the pneumoconiosis is totally disabling. See 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).
Pursuant to Section 725.310 (2000), any party may, within a year of a final
order, request modification of the order. Modification may be granted if there are
changed circumstances or there was a mistake in a determination of fact in the
earlier decision. Kott v. Director, OWCP, 17 BLR 1-9 (1992). Further, if
a claimant avers generally or simply alleges that the administrative law judge
improperly found or mistakenly decided the ultimate fact and thus, erroneously
denied the claim, the administrative law judge has the authority, without more to
modify the denial of benefits. Jessee v. Director, OWCP, 5 F.3d 723, BLR 2-26 (4th Cir. 1993).
Claimant asserts that the administrative law judge erred in failing to
consider the newly submitted report of Dr. Smiddy in conjunction with his
previously submitted reports, to find that claimant was totally disabled. Contrary
to claimant's assertion, the administrative law judge properly considered all of
Dr. Smiddy's reports together, Decision and Order at 6, before finding that Dr.
Smiddy's reports were entitled to less weight than the contrary reports from Dr.
Castle because they were "not as thorough and complete in their discussion of the
findings on physical examination and laboratory testing as the reports of Dr.
Castle." Decision and Order at 11; Claimant's Exhibit 1; Director's Exhibits 71,
73. This was rational. Milburn Colliery Co. v. Hicks, 138 F.3d 524, 532
n.9, 21 BLR 2-323, 2-335 n.9 (4th Cir. 1998); Underwood v. Elkay Mining,
Inc., 105 F.3d 946, 951 (4th Cir. 1997); Clark v. Karst-Robbins Coal
Co., 12 BLR 1-149, 1-155 (1989)(en banc). Likewise, on the issue of
disability causation the administrative law judge also rationally found Dr.
Smiddy's opinion was voiced "in terms of brief statements in his letters and
reports, without providing adequate reasons or the findings that form the basis for
his opinion," Decision and Order at 14, in contrast to Dr. Castle's opinion which
was better detailed and supported by the evidence of record. Hicks,
supra; Underwood, supra; Clark, supra.
Claimant also argues that the administrative law judge erred in not according
Dr. Smiddy's opinion greater weight pursuant to 20 C.F.R. §718.104(d) which
requires the administrative law judge to accept, under certain conditions, the
opinion of the treating physician as substantial evidence and to give it
controlling weight. Because Dr. Smiddy's most recent opinion is dated February 22,
2001, it is governed by 20 C.F.R. §718.104(d). See 20 C.F.R.
§718.101(b). Section 718.104(d) states in pertinent part that:
In appropriate cases, the relationship between the miner and his
treating physician may constitute substantial evidence in support of the
adjudication officer's decision to give that physician's opinion
controlling weight, provided that the weight given to the opinion of a
miner's treating physician shall also be based on the credibility of the
physician's opinion in light of its reasoning and documentation, other
relevant evidence, and the record as a whole. 20 C.F.R.
§718.104(d)(5).
In this case, the administrative law judge properly considered the weight to be
accorded to Dr. Smiddy's opinion, but found insufficient discussion of the reasons
or findings which form the basis for his conclusions. Therefore, having found Dr.
Smiddy's February 22, 2001 opinion unreasoned and undocumented, the administrative
law judge properly found that it was not entitled to greater weight based on Dr.
Smiddy's status as a treating physician at Section 718.104(d)(5). Contrary to
claimant's argument, that the administrative law judge did not provide adequate
grounds for discrediting Dr. Smiddy's report, the administrative law judge found
that Dr. Smiddy did not provide any report "related to his on-going treatment of
claimant nor does he provide findings related to his unique perspective as
claimant's treating physician which supports his conclusory statements." Decision
and Order at 11; 20 C.F.R. §718.104(d); see Hicks, supra.
Accordingly, the Decision and Order Denying Benefits of the administrative law
judge is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
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 20
C.F.R. Parts 718, 725 and 726 (2001). All citations to the regulations, unless otherwise noted, refer to the amended
regulations.
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2) Claimant filed the instant claim on May 10, 1996. Director's Exhibit 1.The claim was initially
granted by the Office of Workers' Compensation Programs on November 5, 1996. Director's Exhibit 25. Employer
appealed and the case was transferred to the Office of Administrative Law Judges for a hearing on January 15, 1997.
Director's Exhibit 37. By decision dated December 2, 1997, Administrative Law Judge Thomas M. Burke denied benefits,
finding that claimant failed to establish the presence of pneumoconiosis or that he was totally disabled by pneumoconiosis.
Director's Exhibit 57. Claimant appealed, but the Board affirmed the denial of benefits in Hubbard v. Clinchfield Coal
Co., BRB No. 98-0422 BLA (April 26, 1999)(unpub.). Claimant requested modification on April 5, 2000. Director's
Exhibit 71.
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NOTE: This is an UNPUBLISHED BLA Document.
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