BRB No. 02-0342 BLA
MARY JANE ADDIS-COMBS )
(Surviving Daughter of PEARL COMBS) )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/28/2002
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits of Rudolf L. Jensen,
Administrative Law Judge, United States Department of Labor.
David A. Laite (Brown, Lippert, Heile & Evans), Cincinnati, Ohio, for
claimant.
Timothy S. Williams (Eugene Scalia, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
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: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant[1] appeals the Decision and Order - Denying
Benefits (00-BLA-0846) of Administrative Law Judge Rudolf L. Jensen (the administrative
law judge) on a claim for survivor's benefits 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 while the evidence documents claimant's traumatic and chaotic
childhood and shows that claimant was diagnosed in 2001 with schizoaffective disorder, depressive type,[3] there is no medical evidence sufficient to demonstrate that claimant was disabled
before she attained age 22 under 20 C.F.R. §725.221, as "disability" is defined under Section 223(d) of the Social
Security Act, 42 U.S.C. §423(d). The administrative law judge found, therefore, that claimant had not demonstrated
her dependency upon the miner under 20 C.F.R. §725.209.
On appeal, claimant contends that contrary to the administrative law judge's finding, the record contains medical
opinions diagnosing her as disabled before attaining age 22. Claimant relies on the opinions rendered by her psychiatrist,
Cory Pelnick, M.D., and her therapist, Michele Pelnick, Ph.D., see Claimant's Exhibits 1, 2. Specifically, claimant
notes that in their August 17, 2000 opinion, Drs. Pelnick and Pelnick state, inter alia, "[Claimant] has a long history
of psychiatric treatment dating back to her childhood. Although these early records are unlikely to be obtainable, it is our
opinion that [claimant's] psychiatric disability dates back to her youth." Claimant's Exhibit 2. Claimant contends that the
administrative law judge failed to consider fully this medical opinion, and asserts that claimant's "childhood" would
"obvious[ly]" refer to the time before she attained age 22. Claimant's Brief at 3. The Director, Office of Workers'
Compensation Programs (the Director), responds, and seeks affirmance of the decision below. The Director concedes that
the August 17, 2000 opinion rendered by Drs. Pelnick and Pelnick suggests that claimant's condition dates back to her
childhood but argues that the administrative law judge reasonably determined that it does not convincingly establish
claimant's disability before attaining age 22. The Director further asserts that the statement by Drs. Pelnick and Pelnick
that claimant was placed in a "psychiatric institution for nine months at age 13," Claimant's Exhibit 2, is "misleading"
where claimant testified at the hearing that the facility was called a "Girls Industrial School" which she described as a
"reform school." Hearing Transcript at 33-34.
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).
The regulations provide that a child of a deceased miner is entitled to benefits if the standards of relationship and
dependency are met. In the instant case, it is undisputed that claimant meets the relationship requirement as she is the
deceased miner's daughter. See Claimant's Exhibit 3. Therefore, claimant must establish her dependency on the
deceased miner. An unmarried adult child satisfies the dependency requirement if such child is 18 years of age or older
and is under a disability as defined in Section 223(d) of the Social Security Act, 42 U.S.C. §423(d), provided that
the disability began before the child attained age 22. 20 C.F.R. §§725.209, 725.221. Under the Social Security
Act, "disability" means an "inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months..." 42 U.S.C. §423(d)(1)(A).
Claimant relies on medical opinions rendered by her psychiatrist, Dr. Cory Pelnick, and her therapist, Dr. Michele
Pelnick, to challenge the administrative law judge's finding that there is no medical evidence sufficient to demonstrate that
claimant was disabled, as defined under Section 223(d) of the Social Security Act, 42 U.S.C. §423(d), before attaining
age 22, and that therefore, claimant cannot establish the requisite dependency on the deceased miner. In their August 17,
2000 opinion, Drs. Pelnick and Pelnick opined as follows:
[Claimant] has been a patient at the Center since January 1999. She has a long history of psychiatric
treatment dating back to her childhood. Although these early records are unlikely to be obtainable, it is our
opinion that [claimant's] psychiatric disability dates back to her youth. Mary is a good historian who reports
an extremely chaotic, abusive childhood with multiple traumatic experiences. She reports being removed
from the home and placed in a psychiatric institution for nine months at age 13. She recalls being in mental
health treatment through Family Services in Cincinnati for as long as she can remember. Her capacity to
care for herself has been significantly limited throughout her life. [Claimant] relied upon her father for
financial and emotional support until his death in 1983.
Claimant's Exhibit 2. In their January 17, 2001 opinion, claimant's psychiatrists indicated that although childhood records
are unavailable, more recent records include reports by claimant of a "chaotic, abusive childhood during which she had a
dependent relationship with her father, on whom she relied for both financial and emotional support." Claimant's Exhibit
1. Drs. Pelnick and Pelnick also stated therein that their "working diagnosis" is schizoaffective disorder, depressed type,
and noted that claimant has a "lengthy history of auditory hallucinations, debilitating symptoms of depression and anxiety
as well as chronic suicidal ideation." Id.
After consideration of the administrative law judge's findings, the parties' contentions, and the evidence of record,
we affirm the decision below as it is supported by substantial evidence, rational, and is in accordance with applicable law.
The administrative law judge properly found that the medical evidence consists of current treatment records for claimant's
problems. Specifically, the record reveals that in 2000, Drs. Pelnick and Pelnick indicated that
claimant has been a patient "at the Center" since January of 1999, Claimant's
Exhibit 2, and further indicated, in 2001, that their "working diagnosis" is
schizoaffective disorder, depressed type, Claimant's Exhibit 1. The record also
contains medical office notes showing that claimant was diagnosed with, inter
alia, dysthymic disorder and major depression episode/dysthymia in 1994.
Claimant's Exhibit 3. The administrative law judge properly determined, however, that the record contains no
medical opinion which diagnoses claimant as disabled, within the meaning of Section 223(d) of the Social Security Act,
before attaining age 22. Specifically, the administrative law judge found:
Drs. Pelnick and Pelnick opine that [claimant's] capacity to care for herself has been "significantly limited"
throughout her life, but there is no diagnosis made as to what impairment caused this limitation of capacity
nor the time at which this incapacity began. Without such a diagnosis, I simply cannot analyze the
testimony and make a determination that she suffered a disability prior to age twenty-two. A letter dated
May 7, 2001, was received from Claimant's attorney containing a report from the Ohio Department of Youth
Services, stating that all of [claimant's] childhood records were destroyed approximately thirty years ago.
(CX 14).
Decision and Order at 6. The administrative law judge further found:
In this case, lay testimony documents a chaotic and traumatic life. This evidence, together with medical
opinions demonstrating mental disability prior to age twenty-two, would be sufficient to show dependency
pursuant to 20 C.F.R. §725.221. However, there simply is no medical evidence sufficient to
demonstrate that claimant was disabled, as defined in 42 U.S.C. §423, prior to her twenty-second
birthday. Her childhood records have been destroyed, her medical records from Queen City/Mitchell Mental
Health Services are relevant to her current psychiatric state only, her social security letter contains no
information regarding her condition, and the letters from her psychiatrists do not make diagnoses relating
to her childhood. She, therefore, can not demonstrate dependency upon her father for purposes of receiving
survivor's benefits under the Act.
Decision and Order at 7. The administrative law judge thereby permissibly determined that claimant's doctors, whose
treatment of claimant dates only from 1999 and whose assessment of claimant is expressed in their opinions contained in
Claimant's Exhibits 1 and 2, did not identify with any specificity or otherwise "make diagnoses" of any disability which
claimant might have experienced in her childhood. See generally Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR
2-111 (6th Cir. 1995); Decision and Order at 7. Given the totality of the medical opinions of record, the earliest of which
is from 1994 when claimant was forty-eight years old, see Claimant's Exhibit 3, Director's Exhibit 1, we hold that
substantial evidence supports the administrative law judge's finding that the record contains no medical opinion sufficient
to demonstrate that claimant was disabled, as defined under Section 223 of the Social Security Act, before attaining age
22. 20 C.F.R. §725.221.
Based on the foregoing, we affirm the administrative law judge's finding that the evidence is insufficient to establish
claimant's dependency on the deceased miner as required under 20 C.F.R. §725.209. We, therefore, affirm the
administrative law judges denial of benefits in the instant survivor's claim.
Accordingly, the administrative law judge's Decision and Order - Denying benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)Claimant was born on September 28, 1946, and is the surviving
daughter of the deceased miner, Pearl Combs. Claimant's Exhibits 1, 2. The
Department of Labor awarded the miner benefits on February 6, 1979, retroactive to
August of 1977. Director's Exhibit 8. Following the miner's death on October 10,
1983, the miner's widow, claimant's mother Myrtle Combs, was awarded augmented
benefits on November 1, 1983. Director's Exhibit 9. Claimant filed the instant
claim for benefits on January 13, 2000. 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 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)The record shows that claimant was diagnosed with, inter
alia, dysthymic disorder and major depression episode/dysthymia as early as
1994. Claimant's Exhibit 3.
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NOTE: This is an UNPUBLISHED BLA Document.
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