BRB No. 98 - 1449 BLA
WILLIAM R. SHADE )
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Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/06/1999
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits of Ainsworth H.
Brown, Administrative Law Judge, United States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for claimant.
Helen H. Cox (Henry L. Solano, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and 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: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant[1] appeals the Decision and Order -
Denying Benefits (97-BLA-0859) 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). Accepting the stipulation of at least ten years of coal mine employment, the
administrative law judge found that the evidence was insufficient to establish the
existence of pneumoconiosis pursuant to Section 718.202(a). Accordingly, the
administrative law judge denied benefits.
On appeal, claimant challenges the administrative law judge's findings
pursuant to 20 C.F.R. §718.202(a)(1). Claimant asserts that the
administrative law judge erred by failing to comply with the requirements of the
Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated
into the Act by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C.
§932(a). Claimant also challenges the administrative law judge's
determination that the evidence fails to establish the existence of pneumoconiosis
at 20 C.F.R. §718.202(a)(4), contending that the medical opinion evidence of
record establishes the existence of pneumoconiosis. The Director, Office of
Workers' Compensation Programs (the Director), in response, has filed a motion to
remand, wherein he argues that the administrative law judge failed to properly
weigh the evidence at Sections 718.202(a)(1) and (a)(4), and he urges that the case
be remanded.[2]
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 into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).
To be entitled to benefits under 20 C.F.R. Part 718, claimant must demonstrate
by a preponderance of the evidence that he is totally disabled due to
pneumoconiosis arising out of coal mine employment. See 20 C.F.R.
§§718.3, 718.202, 718.203, 718.204. Failure to establish any one of
these elements precludes entitlement. Anderson v. Valley Camp of Utah, Inc.,
12 BLR 1-111 (1989); Trent v. Director, OWCP, 11 BLR 1-26 (1987).
Initially, claimant contends that the administrative law judge erred when he
found that the evidence fails to establish the existence of pneumoconiosis pursuant
to Section 718.202(a)(1). Claimant asserts that the administrative law judge
abrogated his duty to weigh the conflicting evidence when he found the evidence
equally probative and in equipoise, and thus, determined that claimant had failed
to carry his burden. The Director agrees with claimant's position, and argues
that, contrary to the administrative law judge's finding, the x-ray evidence is not
equally probative and in equipoise. Rather, the Director contends that the
administrative law judge did not adequately consider the differences in the
readers' qualifications in weighing the x-ray evidence, and asserts that the case
must be remanded for the administrative law judge to consider and account for these
differences. Further, the Director contends that the administrative law judge
erred in finding Dr. Lippman's July 30, 1997 interpretation positive when it was
classified unreadable.
Claimant has not carried his burden and may not be awarded benefits where the
administrative law judge finds the evidence equally probative and in equipoise,
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 the instant case, however, the administrative law
judge made no effort to resolve the conflict in the evidence. Further, as the
Director contends, the positive and negative x-ray interpretations are not evenly
divided between readers with the same credentials as the administrative law judge
found, see Director's Exhibits 14, 15, 16, 25, 26, 37, 38, 40, 41;
Claimant's Exhibits 4, 7, 10, 11, 12, and as the Director also correctly notes, the
administrative law judge mischaracterized Dr. Lippman's interpretation dated July
30, 1997 by finding that it was positive, when in fact, Dr. Lippman found the x-ray
to be unreadable. Director's Exhibit 41; Decision and Order at 4.[3] We vacate, therefore, the administrative law
judge's finding that the x-ray evidence fails to establish to establish the
existence of pneumoconiosis at Section 718.202(a)(1), and remand the case to him
in order to comply with the instructions as set forth above. See Tackett v.
Director, OWCP, 7 BLR 1-703 (1985).
Turning to the administrative law judge's evaluation of the evidence at
Section 718.202(a)(4), in considering the physicians' opinions, claimant and the
Director contend that the administrative law judge impermissibly substituted his
own expertise for that of the physicians of record and selectively analyzed the
physicians' opinions when he concluded that the results of pulmonary function
studies performed by Dr. Kraynak in November 1997, which were not reviewed by other
physicians, must be invalid and affected the credibility of Dr. Kraynak's November
1997 deposition testimony because Drs. Ranavaya and Spagnolo had found that the
results of pulmonary function studies performed by Dr. Kraynak in October 1996 and
July and August 1997 were invalid, see Decision and Order at 5. Decision
and Order at 6. See Fagg v. Amax Coal Co., 12 BLR 1-77 (1988); Justice
v. Island Creek Coal Co., 11 BLR 1-91 (1988); Marcum v. Director, OWCP,
11 BLR 1-23 (1987). We agree. On remand, therefore the administrative law judge
must reconsider the credibility of the medical opinion evidence, must base his
findings only upon evidence which is of record, and may not substitute his own
expertise or selectively analyze the evidence.
Next, as claimant correctly indicates, the administrative law judge erred when
he discounted Dr. Kraynak's opinion, in part, because he found a discrepancy
between his deposition testimony and his written report. Dr. Kraynak noted in his
written report that claimant had "normal color" in his extremities and not simply
"normal color" as the administrative law judge states. Decision and Order at 6.
Thus, we agree with claimant that Dr. Kraynak's testimony at deposition that
claimant's lips were cyanotic and his written report noting normal color of the
extremities is not on its face inconsistent. See Justice, supra.
Finally, with respect to claimant's contention that Dr. Kraynak's opinion should
be accorded greater weight because he was claimant's treating physician, as the
Director correctly points out, there is no requirement that a treating physician's
opinion be credited solely on the basis of his being the treating physician, see
Lango v. Director, OWCP, 104 F.3d 573, 21 BLR 2-12 (3d Cir. 1997); Schaaf
v. Mathews, 574 F.2d 157 (3d Cir. 1978); Tedesco v. Director, OWCP, 18
BLR 1-103 (1994); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985). The length
of time a physician has treated claimant and his familiarity with claimant's
condition are, however, factors relevant to determining the credibility of a
physician's opinion, as claimant contends. Revnak v. Director, OWCP, 7 BLR
1-771 (1985). On remand, therefore, these are factors along with the thoroughness
of the reports, Hall v. Director, OWCP, 8 BLR 1-193 (1985), that must be
considered in assessing the credibility of the medical opinions. Thus, because of
the administrative law judge's selective analysis and mischaracterization of the
evidence and its effect on his consideration of the evidence as a whole, this case
must be remanded for reconsideration of the x-ray evidence and the physicians'
opinions pursuant to Section 718.202(a). Penn Allegheny Coal Co. v.
Williams, 111 F.3d 22, 21 BLR 2-104 (3d Cir. 1997).
Accordingly, the administrative law judge's Decision and Order - Denying
Benefits is affirmed in part, vacated in part and the case is remanded to him for
further proceedings consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Claimant is William R. Shade, the miner, who filed a claim with the
Department of Labor (DOL) on September 23, 1996. Director's Exhibit 1.
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2) Inasmuch as no party challenges the administrative law judge's findings that claimant
established at least ten years of qualifying coal mine employment, that there was no evidence establishing
entitlement under Section 718.202(a)(2), (3), and that the Director is the party responsible for any benefits that
claimant is found entitled to are unchallenged on appeal, they are affirmed. See Coen v. Director, OWCP,
7 BLR 1-30 (1984); Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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3) Claimant indicates that this administrative law judge has a practice of limiting each
party to three x-ray readings and asserts that this practice is violative of due process. We decline to address this
contention and hold that since the administrative law judge did not adhere to this practice in the instant case, this
argument is not germane to this appeal. See generally Warman v. Pittsburg and Midway Coal Co., 8 BLR
1-390 (1985); Rematta v. Director, OWCP, 8 BLR 1-214 (1985).
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NOTE: This is an UNPUBLISHED BLA Document.
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