BRB No. 98-0832 BLA
RAYMOND F. PHILLIPS )
)
Claimant-Petitioner )
)
v. )
)
BISHOP COAL COMPANY )
)
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/20/1999
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Fourth Decision and Order Upon Remand of Daniel A. Sarno, Jr.,
Administrative Law Judge, United States Department of Labor.
Raymond F. Phillips, Hickory, North Carolina, pro se.
Mary Rich Maloy (Jackson & Kelly), Charleston, West Virginia, for
employer.
Before: SMITH, BROWN and MCGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Fourth Decision and
Order Upon Remand (82-BLA-5796) of Administrative Law Judge Daniel A. Sarno, Jr.
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). This case is before the Board for the fifth
time. In the Board's 1995 Decision and Order, Phillips v. Bishop Coal Co.,
BRB No. 95-1066 BLA (Nov. 30, 1995)(unpub.)(McGranery, J. dissenting), we affirmed
the administrative law judge's denial of benefits, holding that the administrative
law judge properly found that claimant failed to establish invocation of the
interim presumption found at 20 C.F.R. §727.203(a), or entitlement to benefits
pursuant to 20 C.F.R. Part 410, Subpart D. In so holding, the Board affirmed the
administrative law judge's weighing of medical reports at 20 C.F.R.
§727.203(a)(4), holding that the administrative law judge acted within his
discretion as trier-of-fact in according determinative weight to the opinions of
Drs. Abernathy, Rasmussen and Zaldivar, all of whom determined that claimant did
not suffer with a totally disabling respiratory or pulmonary impairment. The Board
further held that the administrative law judge acted rationally in discounting the
opinion of Dr. Taylor, as his assessment of disability was a list of physical
restrictions which the administrative law judge rationally found to be claimant's
subjective recitation of symptoms.
Claimant filed a motion for reconsideration, which was granted, and, in
Phillips v. Bishop Coal Co., BRB No. 95-1066 BLA (Decision and Order on
Reconsideration En Banc)(Dec. 8, 1997)(unpub.), the Board vacated the
administrative law judge's weighing of the medical opinions and remanded for
further consideration under Section 727.203(a)(4) and 20 C.F.R. Part 410, Subpart
D. Specifically, the Board held, pursuant to the then-recent holding of the United
States Court of Appeals for the Fourth Circuit in Scott v. Mason Coal Co.,
60 F.3d 1138, 19 BLR 2-257 (4th Cir. 1995), that the administrative law judge
must explain his determination that physical limitations contained in Dr. Taylor's
medical opinion were a recitation of symptoms reported by the claimant rather than
a medical determination made by the physician. The Board also held that, on
remand, the administrative law judge must determine whether the medical opinion by
Dr. Zaldivar, which was relied up on in part by the administrative law judge, was
properly placed into the evidentiary record.
On remand, the administrative law judge concluded that the physical
limitations contained in Dr. Taylor's opinion were a medical determination
proffered by the physician, but found the medical opinion entitled to little weight
because the physician provided no explanation for his conclusions. The
administrative law judge also found that Dr. Zaldivar's opinion was excluded from
the record, as the report had been offered into evidence but subsequently
withdrawn. The administrative law judge then considered the other relevant
evidence of record, and again found that claimant failed to establish a totally
disabling respiratory or pulmonary impairment pursuant to Section 727.203(a)(4) or
Part 410 Subpart D, relying on the medical opinions of Drs. Abernathy and Rasmussen
as best reasoned and explained. Claimant currently without counsel appeals and
employer responds, requesting affirmance of the decision below.
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue to be whether the Decision and Order below is supported by
substantial evidence. Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must
affirm the findings of the administrative law judge if they are supported by
substantial evidence, are rational, and are in accordance with applicable law. 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).
After consideration of the administrative law judge's Fourth Decision and
Order Upon Remand, the evidence of record, and the arguments made by the parties,
we conclude that the Decision and Order of the administrative law judge is
supported by substantial evidence and contains no reversible error. Initially,
we note that, as instructed on remand, the administrative law judge properly
considered the medical opinion of Dr. Taylor in light of the holding of the United
States Court of Appeals for the Fourth Circuit in Scott, and concluded that
Dr. Taylor's listing of physical restrictions was a medical assessment rather than
the claimant's recitation of his own symptoms. The administrative law judge's
finding is rational, and in accordance with the holding of the court in
Scott, inasmuch as the administrative law judge reasonably concluded that
the physical limitations contained in Dr. Taylor's report must be taken as the
physician's medical opinion because there is no explicit evidence to the contrary
contained in the physician's report. See Director's Exhibit 17;
Scott, 60 F.3d at 1141, 19 BLR at 2-263. Furthermore, the administrative
law judge acted within his discretion as trier of fact in finding Dr. Taylor's
opinion to be entitled to little weight as unreasoned and unsupported by objective
evidence, because the physician provided no indication that he performed any
objective tests and did not explain how he reached his conclusions regarding
claimant's physical limitations.[1] Clark v.
Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Tackett v.
Director, OWCP, 12 BLR 1-11 (1988); Fields v. Island Creek Coal Co., 10
BLR 1-19 (1987); Fuller v. Gibraltar Coal Corp, 6 BLR 1-1291 (1984).
Furthermore, in response to the Board's instructions in the 1997 Decision and
Order on Reconsideration, the administrative law judge determined that the medical
opinion of Dr. Zaldivar, labeled Employer's Exhibit 8, was not entered into
evidence at the hearing, but was proposed and then withdrawn by employer's counsel.
The administrative law judge's finding in this regard is supported by substantial
evidence, since the transcript of the hearing indicates that there was some
discussion about whether Dr. Zaldivar's opinion was properly served on the parties
in accordance with the "twenty day rule" found at 20 C.F.R. §725.456, and, in
response to the concerns of claimant's then-counsel[2] , employer's counsel voluntarily withdrew the report from the
evidentiary record. The administrative law judge stated that he was placing the
physical report in the file, noted that it had been withdrawn, and would that he
not consider it in rendering his opinion on the case. Hearing Transcript at 12 -
14.
Inasmuch as the administrative law judge's findings in this regard are rational
and supported by the evidentiary record, they are affirmed. Kuchwara v.
Director, OWCP, 7 BLR 1-167 (1984).
We also affirm the administrative law judge's weighing of medical opinions
pursuant to Section 727.203(a)(4) in this case. The administrative law judge
properly considered all of the medical opinions of record, namely the opinions of
Drs. Abernathy, Rasmussen Paranthaman, Motos, Agrival and Hatfield, and rationally
relied upon Dr. Abernathy's opinion, in conjunction with the opinion of Dr.
Rasmussen, as the most credible, finding it to be supported by objective evidence
and the best reasoned and explained. Claimant contends that the administrative law
judge erred in relying upon Dr. Abernathy's opinion, because the physician opined
that claimant was capable of returning to his usual coal mine employment without
demonstrating familiarity with the exertional requirements of claimant's usual job
as a stationary equipment operator. However, contrary to claimant's allegations,
the record reflects that Dr. Abernathy was aware of the exertional requirements of
claimant's usual coal mine employment Dr. Abernathy's stated in his medical opinion
that claimant had been employed in the mines for 37 years, that he worked at the
tipple performing different jobs as a slate picker, car dropper, railroad car
loader, diaster table operator and clean up man, that claimant's last job was that
of a stationary equipment operator, where claimant loaded coal into cars, took care
of filters, kept the floors washed and repaired breakdowns. Director's Exhibit
39.[3] We also reject claimant's contention that
the administrative law judge was bound to credit the opinion of Dr. Motos based on
his status as claimant's treating physician. The United States Court of Appeals
for the Fourth Circuit, within whose jurisdiction this case arises, has recently
held in Sterling Smokeless Coal Company v. Akers, 131 F.3d 438, 21 BLR 2-269
(4th Cir. 1998), and Milburn Colliery Company v. Hicks, 138 F.3d 524, 21 BLR
2-323 (4th Cir. 1998), that an administrative law judge may not mechanically credit
the opinions of examining and treating physicians to the exclusion of other
competent medical opinions solely because the doctor personally examined the miner.
See Hicks, 138 F.3d at 533, 21 BLR at 335. Moreover, unlike Dr. Motos and
the other physicians with contrary opinions Dr. Abernathy explicitly indicated that
his medical opinion was based upon past medical history, family history, physical
examination, pulmonary function studies, blood gas studies, electrocardiogram and
x-rays. Further, Dr. Abernathy fully explained how these objective tests led him
to the conclusion that claimant did not have a severe pulmonary disorder, noting
that the oxygen exchange is fairly normal and improves with exercise, indicating
that there is no significant alveolocapillary block, that a spirogram was an effort
dependent test and may not have reflected maximum effort, and that forced
expiratory volume was fairly normal. Director's Exhibit 39. Consequently, the
administrative law judge acted within his discretion in finding that Dr.
Abernathy's opinion was entitled to the greatest weight because it is best
supported by objective evidence, best reasoned and best explained. See Clark,
supra; Lucostic v. United States Steel Corp.,8 BLR 1-46 (1985);
Stark v. Director, OWCP, 9 BLR 1-36 (1986). Accordingly, we affirm the
administrative law judge's determination that claimant failed to establish a
totally disabling respiratory or pulmonary impairment pursuant to Section
727.203(a)(4), and consequently, affirm the administrative law judge's finding that
claimant failed to establish entitlement to benefits pursuant to 20 C.F.R. Part
727.[4]
Finally, we reject claimant's contention that the administrative law judge
refused to evaluate this claim under 20 C.F.R. Part 410, Subpart D. The
administrative law judge rationally concluded that claimant failed to establish the
existence of pneumoconiosis by x-ray at Section 410.414(a)(1), based upon the prior
weighing of x-rays at 20 C.F.R. §727.203(a)(1), which had been previously
affirmed by the Board. The administrative law judge also found that all pulmonary
function studies and blood gas studies of record were non-qualifying pursuant 20
C.F.R. §410.426(b) or the Appendix at Part 410, Subpart D. Furthermore, based
upon his weighing of medical opinions pursuant to Section 727.203(a)(4), the
administrative law judge rationally concluded that claimant failed to establish a
totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R.
§§410.412, 410.414(b)(1) - (4), 410.422, 410.424, 410.426. Thus, the
administrative law judge's finding that claimant failed to establish entitlement
pursuant to Part 410, Subpart D is rational, supported by substantial evidence and
is consequently affirmed.
Accordingly, the administrative law judge's Fourth Decision and Order Upon
Remand denying benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant contends that the administrative law judge erred
by failing to compare the physical limitations contained in Dr. Taylor's
report with the exertional requirements of his usual coal mine employment
to determine whether Dr. Taylor's opinion is sufficient to establish a
totally disabling respiratory or pulmonary impairment. Inasmuch as the
administrative law judge found that, even if sufficient to establish total
disability, Dr. Taylor's report is not entitled to sufficient weight as it
is unreasoned and undocumented, we reject claimant's contention that the
administrative law judge committed reversible error in this regard.
Larioni v. Director, OWCP, 6 BLR 1-1276 (1984).
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2)Although claimant presently is pursuing this claim without
the assistance of counsel, claimant was represented by counsel at the formal
hearing in this case, which occurred on June 27, 1984.
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3)We also note that claimant alleges that Dr. Rasmussen's
report should not have been relied up to defeat invocation of the
presumption at Section 727.203(a)(4) because he opined that claimant was
capable of performing his usual employment as a stationary equipment
operator without demonstrating knowledge of the physical demands of the
position. Although the record does not contain evidence that Dr. Rasmussen
had specific knowledge of the exertional requirements of claimant's last
coal mining position, inasmuch as Dr. Rasmussen concluded in his most recent
report in 1982 that his 1977 estimate that claimant suffered a 30% loss of
capacity was "somewhat excessive", Employer's Exhibit 1, and found in that
1977 report that claimant could perform steady work at moderate levels,
Director's Exhibit 40, the administrative law judge rationally relied on Dr.
Rasmussen's opinion as supportive of Dr. Abernathy's conclusion that
claimant was not suffering from a totally disabling respiratory or pulmonary
impairment. See generally Casella v. Kaiser Steel Corp., 9 BLR 1-131
(1986).
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4)Inasmuch as we affirm the administrative law judge's
finding that claimant failed to establish invocation pursuant to 20 C.F.R.
§727.203(a), we decline to address claimant's allegations of error
regarding rebuttal pursuant to 20 C.F.R. §727.203(b). We note that the
administrative law judge did not address Section 727.203(b) rebuttal in his
Fourth Decision and Order Upon Remand.
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NOTE: This is an UNPUBLISHED BLA Document.
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