BRB No. 98-1459 BLA
DOUGLAS R. FULMER )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/11/1999
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Ainsworth H. Brown, Administrative Law
Judge, United States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for claimant.
Dorothy L. Page (Henry J. 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 Director, Office of
Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order (97-BLA-0649) of Administrative Law
Judge Ainsworth H. Brown 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). The administrative law
judge credited claimant with twelve years of coal mine employment based on the
parties' agreement at the hearing. See Hearing Transcript at 10. The
administrative law judge adjudicated this claim pursuant to the regulatory criteria
set forth in 20 C.F.R. Part 718 as the claim was filed after March 31, 1980. The
administrative law judge found the evidence of record insufficient to establish the
existence of pneumoconiosis or to demonstrate the presence of a totally disabling
respiratory impairment at 20 C.F.R. §§718.202(a) and 718.204(c).
Accordingly, benefits were denied. On appeal, claimant challenges the
administrative law judge's finding that the x-ray evidence was insufficient to
establish pneumoconiosis and that the report of Dr. Kraynak was insufficient to
establish a totally disabling respiratory impairment.[1]
The Director, Office of Workers' Compensation Programs (the Director), has filed
a Motion to Remand.
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.[2] Trent v. Director,
OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc).
Initially, claimant contends that the administrative law judge erred when he
found the weight of the x-ray evidence negative for pneumoconiosis. Specifically,
claimant argues that the administrative law judge violated 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),
because he did not provide an adequate rationale or explanation as to why teaching
credentials should be given more weight than the practical, hands on experience of
practicing physicians who are Board-certified radiologists and B-readers; that the
administrative law judge mischaracterized the evidence of record when, as an
alternative, he found the x-ray evidence equally probative; that the administrative
law judge failed to consider the progressive nature of pneumoconiosis; and that the
administrative law judge applied an inconsistent standard of review.
We do not find claimant's arguments persuasive. The record contains two x-rays taken on May 13, 1996 and April 23, 1997. Board-certified radiologists, ten
of whom are also B readers, interpreted these x-rays eleven times. Their
interpretations were both positive and negative for pneumoconiosis . See
Director's Exhibits 13, 16-18, 30, 32, 34; Claimant's Exhibits 1, 2, 8, 9, 11, 13.
The administrative law judge permissibly accorded greatest weight to the
interpretations of the dually qualified readers.[3]
See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc);
McMath v. Director, OWCP, 12 BLR 1-6 (1988). Likewise, the administrative
law judge acted within his discretion when he found that the x-ray interpretations
of Drs. Sargent and Barrett, who found no coal workers' pneumoconiosis, were more
persuasive because these physicians have current academic credentials. See
Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991)(en banc). The
administrative law judge is empowered to weigh the medical evidence and to
draw his own inferences therefrom, see Maypray v. Island Creek Coal
Co., 7 BLR 1-683 (1985), and the Board may not reweigh the evidence or
substitute its own inferences on appeal. See Clark, supra;
Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989). We,
therefore, affirm the administrative law judge's weighing of the x-ray evidence and
his finding that this evidence is insufficient to establish the existence of
pneumoconiosis at 20 C.F.R. §718.202(a)(1) as it is supported by substantial
evidence.
Claimant next asserts that the administrative law judge erred when he found
the medical opinion of Dr. Kraynak insufficient to demonstrate the presence of
pneumoconiosis or a totally disabling respiratory impairment at 20 C.F.R.
§§718.202(a)(4) and 718.204(c)(4). Specifically, claimant contends that
since Dr. Kraynak relied on two qualifying, valid pulmonary function studies and
reviewed all the evidence of record, the administrative law judge should not have
discredited his report; that the administrative law judge erred when he found only
one valid pulmonary function study as the record contains two valid pulmonary
function studies dated November 5, 1997 and November 13, 1997; that the
administrative law judge selectively analyzed Dr. Kraynak's report when he rejected
the report because the physician's physical findings were different than the
earlier findings of Dr. Ahluwalia; and that the administrative law judge improperly
rejected Dr. Kraynak's criticism of Dr. Ahluwalia's pulmonary function study.[4] The Director agrees with claimant that the
administrative law judge erred when he rejected Dr. Kraynak's report, conceding
that claimant has demonstrated the presence of a totally disabling respiratory
impairment at 20 C.F.R. §718.204(c). Based on the Director's concession, we
reverse the finding of the administrative law judge at Section 718.204(c) and hold
that claimant has met his burden of establishing the presence of a totally
disabling respiratory impairment. We also agree with claimant and the Director
that the administrative law judge erred in rejecting Dr. Kraynak's opinion under
Section 718.202(a)(4) and vacate that finding.[5]
If, on remand, the administrative law judge finds the evidence of record
sufficient to meet claimant's burden of proof at Section 718.202(a)(4), he must
weigh all the relevant medical evidence of record to determine if claimant has
established the existence of pneumoconiosis at Section 718.202(a). See Penn
Allegheny Coal Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir. 1997).
Moreover, if the administrative law judge finds the evidence sufficient to
establish the existence of pneumoconiosis under Section 718.202(a), he must
determine if claimant's pneumoconiosis is a substantially contributing cause of his
totally disabling respiratory impairment. See 20 C.F.R. §§718.201,
718.202(a)(4), 718.204(b); see Bonessa v. United States Steel Corp., 884
F.2d 726, 13 BLR 2-23 (3d Cir. 1989).
Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed in part, reversed in part, vacated in part and this case is
remanded to the administrative law judge for further consideration consistent with
this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) We affirm the findings of the administrative law judge on the length of coal mine
employment, and at 20 C.F.R. §718.202(a)(2) and (a)(3) as unchallenged on appeal. See Skrack v. Island
Creek Coal Co., 6 BLR 1-710 (1983).
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2) Since the miner's last coal mine employment took place in Pennsylvania, the
Board will apply the law of the United States Court of Appeals for the Third Circuit. See Shupe v.
Director, OWCP, 12 BLR 1-200 (1989)(en banc).
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3)Dually qualified readers of x-rays are physicians who are both Board-certified
radiologists and NOISH certified B readers.
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4)Dr. Kraynak performed five pulmonary function studies on claimant. See
Director's Exhibits 28, 36, 38; Claimant's Exhibits 12, 15, 17, 18. Pursuant to the regulatory criteria, the tests
performed on April 23, 1997, June 16, 1997 and August 18, 1997 contained qualifying FEV1 values of 1.15, .87, and
1.10 respectively, and qualifying MVV values of 25, 27.28, and 44 respectively, but were invalidated by reviewing
physicians for suboptimal effort, inconsistent effort, hesitancies, poor effort on MVV, and/or marked variability of
FEV1s or FVCs. See 20 C.F.R. §718.204(c)(1), Appendix B; Director's Exhibits 28, 36, 38. Under
the regulatory criteria, the tests performed on November 5, 1997 and November 13, 1997 contained qualifying FEV1
values of 1.15 and 1.45 respectively, qualifying FVC values of 1.23 and 2.06 respectively, and qualifying MVV values
of 34.09 and 47 respectively. See 20 C.F.R. §718.204(c)(1), Appendix B; Claimant's Exhibits 17,
18. Neither test was invalidated.
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5)The administrative law judge concluded that Dr. Kraynak based his opinion diagnosing
pneumoconiosis on pulmonary function studies that were not as probative as the pulmonary function results relied upon
by Dr. Ahuwalia. Decision and Order at 6. Specifically, the administrative law judge found that Dr. Kraynak relied
upon discredited pulmonary function studies dated April 23, June 16, and August 18, 1997. Id. However,
the administrative law judge erred in failing to consider the fact that Dr. Kraynak indicated that he also relied on
qualifying pulmonary function studies dated November 5 and 13, 1997, which have not been invalidated. Claimant's
Exhibits 17, 18, 20. Moreover, the administrative law judge erred in finding that there was no basis in the record to
support Dr. Kraynak's criticism of the pulmonary function study submitted by Dr. Ahuwalia as showing inaccurately
high values, as Dr. Ahuwalia indicated on the face of the report that the "low expiratory time of 3.9 seconds may result
in an over estimation of FEV1." Director's Exhibit 12.
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NOTE: This is an UNPUBLISHED BLA Document.
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