BRB No. 98-1502 BLA
KENTON CAUDILL )
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Claimant-Petitioner )
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v. ) )
ARCH OF KENTUCKY, ) DATE ISSUED:08/17/1999 8/17/99
INCORPORATED )
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Employer-Respondent )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Thomas F. Phalen, Jr.,
Administrative Law Judge, United States Department of Labor.
Phillip Lewis, Hyden, Kentucky, for claimant.
Ronald E. Gilbertson (Kilcullen, Wilson & Kilcullen, Chartered),
Washington, D.C., for employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (97-BLA-0594) of Administrative Law
Judge Thomas F. Phalen, Jr. denying benefits on a duplicate 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 fourteen years of coal mine employment and
adjudicated this duplicate claim[1] pursuant to
the regulations contained in 20 C.F.R. Part 718. The administrative law judge
found the newly submitted evidence insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4). Consequently, the
administrative law judge concluded that the newly submitted evidence is
insufficient to establish a material change in conditions pursuant to 20 C.F.R.
§725.309. Accordingly, the administrative law judge denied benefits. On
appeal, claimant contends that the administrative law judge erred in finding the
newly submitted evidence insufficient to establish the existence of pneumoconiosis
at 20 C.F.R. §718.202(a)(1) and (a)(4). Employer responds, urging affirmance
of the administrative law judge's Decision and Order. The Director, Office of
Workers' Compensation Programs, has declined to participate in this appeal.[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).
Initially, claimant contends that the administrative law judge erred in
finding the evidence insufficient to establish the existence of pneumoconiosis at
20 C.F.R. §718.202(a)(1). We disagree. Of the seventeen newly submitted x-ray interpretations of record, fifteen readings are negative for pneumoconiosis,
Director's Exhibits 18, 19, 41; Employer's Exhibits 1-7, 9, 10, and two readings
are positive, Director's Exhibit 40. The administrative law judge observed that
although "two readings (of the August 26, 1996, x-ray) are positive for
pneumoconiosis..., the majority of those physicians reading the August 26, 1996,
x-ray read it as negative." Decision and Order at 8. In addition to noting the
numerical superiority of the negative x-ray readings, the administrative law judge
also considered the qualifications of the various physicians.[3] See Woodward v. Director, OWCP,
991 F.2d 314, 17 BLR 2-77 (6th Cir. 1993); Sahara Coal Co. v. Fitts, 39 F.3d
781, 18 BLR 2-384 (7th Cir. 1994). Thus, we reject claimant's assertion that the
administrative law judge erroneously gave weight solely to the numerical
superiority of employer's physicians who provided negative x-ray readings.
Moreover, we hold that substantial evidence supports the administrative law judge's
finding that the newly submitted evidence is insufficient to establish the
existence of pneumoconiosis at 20 C.F.R. §718.202(a)(1). See Woodward,
supra; Fitts, supra.
Next, claimant contends that the administrative law judge erred in finding the
newly submitted evidence insufficient to establish the existence of pneumoconiosis
at 20 C.F.R. §718.202(a)(4). Specifically, claimant asserts that the
administrative law judge should have accorded determinative weight to Dr. Chaney's
opinion due to his status as claimant's treating physician.[4] We disagree. The administrative law judge considered the newly
submitted medical opinions of Drs. Chaney, Dahhan, Fino, Hudson and Wicker.
Whereas Dr. Chaney opined that claimant suffers from pneumoconiosis, Director's
Exhibit 40; Employer's Exhibit 4, Drs. Dahhan, Fino, Hudson and Wicker opined that
claimant does not suffer from pneumoconiosis, Director's Exhibits 14, 38;
Employer's Exhibits 5, 8.
The United States Court of Appeals for the Sixth Circuit, within whose
jurisdiction this case arises, has held that the opinions of treating physicians
are entitled to greater weight than those of nontreating physicians. See
Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17 BLR 2-16 (6th Cir. 1993).
The court has also indicated, however, that this principle does not alter the
administrative law judge's duty, as fact-finder, to evaluate the credibility of the
treating physician's opinion. See Griffith v. Director, OWCP, 49 F.3d 184,
19 BLR 2-111 (6th Cir. 1995). In the present case, the administrative law judge
rationally found that Dr. Chaney's opinion is insufficient to establish the
existence of pneumoconiosis because he found it to be not well reasoned and
documented.[5] See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Fields v. Island
Creek Coal Co., 10 BLR 1-19 (1987); Lucostic v. United States Steel
Corp., 8 BLR 1-46 (1985); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291
(1984). Thus, we reject claimant's assertion that the administrative law judge
should have accorded determinative weight to Dr. Chaney's opinion because Dr.
Chaney is claimant's treating physician. Moreover, since the administrative law
judge properly discredited the only newly submitted medical opinion of record that
could support a finding of the existence of pneumoconiosis, we hold that
substantial evidence supports the administrative law judge's finding that the newly
submitted evidence is insufficient to establish the existence of pneumoconiosis at
20 C.F.R. §718.202(a)(4).
In considering the instant claim, which was filed on December 4, 1995,
Director's Exhibit 1, the administrative law judge found that claimant failed to
establish a material change in conditions at 20 C.F.R. §725.309. As the
administrative law judge correctly noted, claimant's previous claim for benefits
was denied "based on the finding that Claimant did not establish the existence of
pneumoconiosis." Decision and Order at 7; see Director's Exhibit 45. The
United States Court of Appeals for the Sixth Circuit has held that an
administrative law judge must consider all of the new evidence, favorable and
unfavorable to claimant, and determine whether the miner has proven at least one
of the elements of entitlement previously adjudicated against him to assess whether
the evidence is sufficient to establish a material change in conditions pursuant
to 20 C.F.R. §725.309(d). Sharondale Corp. v. Ross, 42 F.3d 993, 997,
19 BLR 2-10, 2-18 (6th Cir. 1994).
Although the administrative law judge considered the evidence at 20 C.F.R.
§718.202(a), and found this evidence insufficient to establish a material
change in conditions at 20 C.F.R. §725.309, we nonetheless remand the case for
further consideration of the newly submitted evidence of record. In accordance
with Ross, claimant is also entitled to consideration of whether the newly
submitted medical evidence is sufficient to establish any one of the other elements
of entitlement under 20 C.F.R. Part 718. Therefore, since the administrative law
judge did not consider whether the newly submitted evidence is sufficient to
establish total disability at 20 C.F.R. §718.204, we vacate the administrative
law judge's finding that the evidence is insufficient to establish a material
change in conditions at 20 C.F.R. §725.309, and remand the case for further
consideration of the newly submitted evidence of record. If on remand, the
administrative law judge finds that claimant established a material change in
conditions under 20 C.F.R. §725.309, he must consider all of the evidence of
record to determine whether it supports a finding of entitlement to benefits on the
merits under 20 C.F.R. Part 718. See Adams v. Director, OWCP, 886
F.2d 818, 13 BLR 2-52 (6th Cir. 1989); Fields, supra; Rafferty v. Jones
& Laughlin Steel Corp., 9 BLR 1-231 (1987); Shedlock v. Bethlehem Mines
Corp., 9 BLR 1-195 (1986), aff'd on recon. en banc, 9 BLR 1-236 (1987).
Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed in part and vacated in part, and the case is remanded for
further proceedings consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)Claimant filed his initial claim on August 11, 1989.
Director's Exhibit 45. On June 2, 1992, Administrative Law Judge Bernard J.
Gilday, Jr. issued a Decision and Order denying benefits based on claimant's
failure to establish the existence of pneumoconiosis. Id. Inasmuch as
claimant did not pursue this claim any further, the denial became final. Claimant
filed his most recent claim on December 4, 1995. Director's Exhibit 1.
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2)Inasmuch as the administrative law judge's length of coal mine
employment finding and his findings pursuant to 20 C.F.R. §718.202(a)(2) and
(a)(3) are not challenged on appeal, we affirm these findings. See Skrack v.
Island Creek Coal Co., 6 BLR 1-710 (1983).
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3)Whereas Drs. Aycoth and Cappiello, who are B readers, read the
August 26, 1996 x-ray as positive for pneumoconiosis, Director's Exhibit 40, Drs.
Sargent, Shipley, Spitz and Wiot, who are B readers and Board-certified
radiologists, reread the same x-ray as negative, Director's Exhibit 41; Employer's
Exhibits 1, 9.
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4)The administrative law judge observed that Dr. Chaney "examined
and treated Claimant on numerous occasions from March, 1988, until March, 1997, for
a variety of complaints and conditions, including coronary artery disease, chronic
obstructive pulmonary disease and diabetes." Decision and Order at 5; see
Director's Exhibits 40, 45; Employer's Exhibit 4.
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5)The administrative law judge stated that "[a]lthough Dr. Chaney
maintained, without further explanation, that Claimant's chest x-rays were
consistent with pneumoconiosis, none of the x-rays read by, or for, him mentioned
pneumo." Decision and Order at 6 (emphasis added). The administrative law judge
observed that "Dr. Chaney admitted that he did not even bother to administer such
tests to assess whether Claimant had pneumoconiosis." Id. at 8. Further,
the administrative law judge observed that "[t]he only objective evidence that Dr.
Chaney cited in supported (sic) of his diagnosis was Claimant's history of wheezing
and shortness of breath." Id. Moreover, the administrative law judge
observed that "Dr. Chaney acknowledged that such symptoms were not specific to
pneumoconiosis and were fully consistent with Claimant's history of heart disease
and emphysema." Id. In addition, the administrative law judge stated that
"[a]nother troubling aspect of Dr. Chaney's diagnosis is the fact that, in none of
the reports that he prepared in conjunction with numerous examinations over [a] ten
year period, did he once mention pneumoconiosis or any disease associated with coal
dust exposure." Id. The administrative law judge observed that "[o]nly when
contacted by Claimant's attorney in 1996, did [Dr. Chaney] conclude, without any
explanation, that Claimant had pneumoconiosis." Id. (emphasis
added).
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NOTE: This is an UNPUBLISHED BLA Document.
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