BRB No. 98-1151 BLA
PAUL SALVATORE )
)
Claimant-Petitioner )
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v. )
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SILVERBROOK ANTHRACITE, )
INCORPORATED )
)
and )
)
INSERVCO INSURANCE COMPANY )
)
Employer/Carrier- )
Respondents )
)
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 Decision and Order Denying Modification of Benefits of
Ainsworth H. Brown, Administrative Law Judge, United States Department of
Labor.
Thomas S. Cometa, Kingston, Pennsylvania, for claimant.
Paul K. Paterson (Mascelli & Paterson), Scranton, Pennsylvania, for
employer/carrier.
Before: BROWN and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order Denying Modification (97-BLA-1717)
of Administrative Law Judge Ainsworth H. Brown 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 third time. In the Decision and Order issued on April 22,
1991, the administrative law judge found that claimant established 26.9 years of
coal mine employment, and based on the filing date applied the regulations found
at 20 C.F.R. Part 718. The administrative law judge also found that claimant
established pneumoconiosis arising from coal mine employment at 20 C.F.R.
§§718.202(a) and 718.203(b), but found the evidence insufficient to
establish total disability at 20 C.F.R. §718.204(c). Accordingly, benefits
were denied. Director's Exhibit 35. Claimant appealed, and in Salvatore
v. Silverbrook Anthracite, Inc., BRB No. 91-1310 BLA (Apr. 9, 1992)(unpub.),
the Board affirmed the denial. Director's Exhibit 43. On February 22, 1993,
claimant filed a request for modification. Director's Exhibit 48. In a
Decision and Order issued on March 14, 1995, the administrative law judge found
that claimant failed to establish total respiratory disability and denied
claimant's request for modification. Director's Exhibit 101. Claimant
appealed, and in Salvatore v. Silverbrook Anthracite, Inc., BRB No. 95-1290 BLA (Nov. 28, 1995)(unpub.), the Board affirmed the denial. Director's
Exhibit 112. Claimant filed another request for modification on November 27,
1996, Director's Exhibit 113, which the administrative law judge denied on March
5, 1997. In his Decision and Order, the administrative law judge found the
evidence insufficient to establish a change in conditions or a mistake in fact
and denied modification. Claimant appeals, contending that the administrative
law judge erred in failing to find the newly submitted evidence establishes
total disability due to pneumoconiosis at 20 C.F.R. §718.204(c)(4).[1] Employer responds, urging affirmance of the
administrative law judge's Decision and Order. The Director, Office of Workers'
Compensation Programs, has not participated in this appeal.
The Board's scope of review is defined by statute. If the findings of fact
and conclusions of law of the administrative law judge are supported by
substantial evidence, are rational and 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).
Claimant appeals, contending that the administrative law judge erred in
failing to credit the medical opinions of Drs. Manganiello and Aquilina at
Section 718.204(c)(4).
The newly submitted evidence consists of medical opinions from four physicians.
Dr. Manganiello determined that claimant is totally and permanently disabled as
a result of anthracosilicosis. Claimant's Exhibit 1; Director's Exhibit 11.
Dr. Aquilina determined that claimant is totally disabled due to pneumoconiosis.
Claimant's Exhibit 2; Director's Exhibit 115. Dr. Levinson, on the other hand,
found no significant pulmonary impairment from claimant's coal mine employment
or any other cause. Responsible Operator Exhibits 1, 4. Dr. Spagnolo found no
reliable objective evidence that claimant has a totally disabling respiratory
impairment. Director's Exhibit 121.
The administrative law judge permissibly accorded greater weight to the
opinions of Drs. Levinson and Spagnolo, who are certified pulmonary experts, as
their credentials are superior to those of Drs. Manganiello and Aquilina.[2] Decision and Order at 4; Scott v. Mason
Coal Co., 14 BLR 1-37 (1990)(en banc); Martinez v. Clayton Coal
Co., 10 BLR 1-24 (1987). In addition, the administrative law judge
permissibly credited the opinion of Dr. Levinson for three reasons: his opinion
regarding the validity of the pulmonary function studies is unrefuted; he found
the physical examination to be normal, and he provided a cogent discussion.
See generally Lango v. Director, OWCP, 104 F.3d 573, 21 BLR 2-12 (3d Cir.
1997); Mancia v. Director, OWCP, 130 F.3d 579, 21 BLR 2-215 (3d Cir.
1997); Carson v. Westmoreland Coal Co., 19 BLR 1-18 (1994). Finally, the
administrative law judge permissibly gave lesser weight to the opinions of Drs.
Manganiello and Aquilina based on their lesser qualifications, and because the
report of Dr. Levinson was better supported by the objective studies and was
better explained. See Carson, supra; Scott, supra; Martinez, supra.
Claimant contends that the Dr. Spagnolo's opinion is "incomplete" since
the administrative law judge found Dr. Spagnolo's assessment related only to
part of the current record, and that the administrative law judge therefore
erred in finding his opinion supportive of Dr. Levinson. See Decision
and Order at 4. We reject this contention, as the administrative law judge
permissibly relied upon Dr. Spagnolo's opinion as additional support for Dr.
Levinson's opinion, even though he found that Dr. Spagnolo's findings related to
only part of the record. See generally Calfee v. Director, OWCP, 8 BLR 1-7 (1985) . Claimant's contention that the administrative law judge erred in
discrediting the medical opinions of Drs. Aquilina and Manganiello because they
relied upon nonqualifying objective tests is without merit. Rather, the
administrative law judge permissibly found that Dr. Levinson provided a more
cogent explanation of his findings. See Tackett v. Cargo Mining Co.,
12 BLR 1-11 (1988)(en banc). We further reject claimant's contention that
the administrative law judge should have accorded greater weight to the treating
physicians, Drs. Aquilina and Manganiello, as the administrative law judge is
not required to do so. See Schetroma v. Director, OWCP, 18 BLR 1-19 (1993). Claimant is asking the Board to reweigh the evidence, which we
are not empowered to do. See Bethenergy Mines, Inc. v.
Director, OWCP [Vrobel], 39 F.3d 458, 19 BLR 2-95 (3d Cir. 1994);
Lango, supra. Finally, claimant argues that the administrative law
judge erred in implying that the opinions of Drs. Aquilina and
Manganiello were based solely on claimant's subjective complaints
pursuant to Section 718.204(d)(2). We reject this argument, as the
administrative law judge did not consider this regulation as a basis for
his decision.[3]
We therefore affirm the administrative law judge's weighing of the
medical opinions at Section 718.204(c)(4), and therefore affirm his
finding that claimant failed to establish total disability at Section
718.204(c). As claimant failed to establish total disability and
therefore failed to establish a change in conditions or a mistake in a
determination of fact, we affirm the administrative law judge's denial of
modification, and subsequent denial of benefits. 20 C.F.R.
§725.310.
Accordingly, the Decision and Order - Denying Benefits of the
administrative law judge is affirmed.
SO ORDERED.
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Claimant concedes that the administrative law judge
committed no error in failing to find total disability at Section
718.204(c)(1)-(3), a finding which we affirm. See Skrack v. Island
Creek Coal Co., 6 BLR 1-710 (1983). Additionally, we affirm the
administrative law judge's finding that claimant failed to establish a
mistake in a determination of fact as unchallenged on appeal. Skrack,
supra.
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2) The administrative law judge noted that Drs. Levinson
and Spagnolo are certified pulmonary experts and that Dr. Manganiello was
simply a licensed physician. The administrative law judge also noted
that Dr. Aquilina's certification was in anesthesia. Decision and Order
at 4.
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3) Section 718.204(d)(2) provides that a finding of total
disability shall not be made solely on the miner's statements or
testimony. 20 C.F.R. §718.204(d)(2).
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NOTE: This is an UNPUBLISHED BLA Document.
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