BRB No. 02-380 BLA
ROBERT E. TOUCHINSKY
Claimant-Petitioner
v.
K&K COAL COMPANY
and
ROCKWOOD CASUALTY
INS. COMPANY
Employer/Carrier-
Respondent
DIRECTOR, OFFICE OF
WORKERS'
COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR
Party-in-Interest
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DATE ISSUED:
___________
DECISION and ORDER
Appeal of the Decision and Order - Denying Request for Modification and
Denying Benefits of Paul H. Teitler, Administrative Law Judge, United
States Department of Labor.
Helen M. Koschoff, Wilburton, Pennsylvania, for claimant.
Sean B. Epstein (Pietragallo, Bosick & Gordon), Pittsburgh,
Pennsylvania, for employer.
Helen H. Cox (Howard M. Radzely, Acting Solicitor of Labor;
Donald S. Shire, Associate Solicitor; Rae Ellen Frank James,
Deputy Associate Solicitor; 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: SMITH, McGRANERY, and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denying Request for
Modification and Denying Benefits (01-BLA-00201) of Administrative Law
Judge Paul H. Teitler 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). Claimant first
filed his claim in 1995. It was denied by Administrative Law Judge
Romano in 1998 on the ground that, although claimant established the
existence of pneumoconiosis arising out of coal mine employment, he did
not prove total disability due to a pulmonary impairment. Director's
Exhibit 45. That decision was not appealed.
Claimant then submitted additional evidence and requested modification
pursuant to 20 C.F.R. §725.310 (2000). Director's Exhibit 46.
Administrative Law Judge Romano denied that request on the ground that
claimant failed to prove total disability due to a pulmonary impairment and
therefore failed to establish a change in conditions or a mistake of fact
in the first denial. Director's Exhibit 65. Claimant did not appeal that
decision.
On March 15, 2000, claimant again submitted additional evidence,
including a new pulmonary function study and medical opinion evidence, and
requested modification. More pulmonary function study results, an arterial
blood-gas study, medical opinions, and depositions were admitted before the
administrative law judge. Following a hearing, Administrative Law Judge
Teitler found that claimant had failed to prove total disability because
the weight of the credible pulmonary function studies showed no disability,
there were no qualifying values on the newly submitted blood gas study, and
the medical opinion evidence did not establish disability. Therefore,
claimant failed to establish a change in conditions or mistake of fact
pursuant to 20 C.F.R. §725.310 (2000).[1] Accordingly, the administrative law judge denied benefits.
On appeal, claimant challenges the administrative law judge's evaluation of the evidence
regarding whether there has been a change in conditions or mistake of fact within the meaning of
Section 725.310 (2000). Employer filed a response brief, arguing that substantial evidence supports
the administrative law judge's decision. The Director, Office of Workers' Compensation Programs,
did not file a brief with the Board.[2]
The Board's scope of review is defined by statute. The administrative law judge's Decision and
Order must be affirmed if it is rational, supported by substantial evidence, and 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).
In determining whether claimant has established a change in conditions pursuant to 20 C.F.R.
§725.310, the administrative law judge is obligated to perform an independent assessment of the
newly submitted evidence, considered in conjunction with the previously submitted evidence, to
determine if the weight of the new evidence is sufficient to establish the element or elements of
entitlement which defeated entitlement in the prior decision. See Kovac v. BCNR Mining
Corporation, 14 BLR 1-156 (1990), modified on recon., 16 BLR 1-71 (1992);
Wojtowicz v. Duquesne Light Co., 12 BLR 1-162, 1-164 (1989); see also O'Keeffe
v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971). In determining whether there has
been a mistake in a determination of fact pursuant to 20 C.F.R. §718.310, the administrative law
judge must re-evaluate all of the evidence in the record. Kovac, supra.
Claimant argues that the administrative law judge did not specifically review all of the record
evidence with respect to whether there was a mistake of fact. This argument lacks merit. The
administrative law judge noted that he had reviewed all of the evidence in the record and made detailed
findings regarding whether the newly submitted pulmonary function tests proved that claimant suffered
from a disabling pulmonary impairment. He then applied those findings to the dual issues of change
in conditions and mistake of fact and found that claimant:
. . . has not established total disability under any of the methods set forth
in subsection 718.204(b). Thus, he has not established any basis for
finding a change in condition since the prior denial nor has he
demonstrated any mistake in fact in the prior denial on the issue of total
disability due to pneumoconiosis. In comparing the like and unlike
evidence of record, both the evidence in the prior determination as well as
the evidence submitted subsequent to the Claimant's motion for
modification, I find the same insufficient to establish that Claimant is
totally disabled.
Decision and Order at 8-9. Because the administrative law judge found the most recent pulmonary
function studies and medical opinion evidence did not establish total disability, a fortiori he
found there was no mistake of fact in the prior decisions on that issue.
Claimant argues the administrative law judge erroneously found that the newly submitted
pulmonary function studies do not establish total disability pursuant to 20 C.F.R.
§718.204(b)(2)(i). We disagree. In addressing whether claimant established a basis for
modification pursuant to 20 C.F.R. §718.204(b)(2), the administrative law judge rationally found
the newly submitted and prior evidence insufficient to establish total disability. First, the administrative
law judge properly found that the pulmonary function study evidence was not qualifying, based upon
the weight of the evidence and his assessment of the qualifications of the physicians who evaluated the
four newly submitted studies. Decision and Order at 6-8. The administrative law judge acknowledged
that the pulmonary function studies in the record yielded conflicting results; however, he determined
that the non-qualifying and conforming results obtained on the June 2000 pulmonary function test
administered by Dr. Levinson were the most reliable. Id. This finding is supported by
substantial evidence, and we affirm it.
Claimant does not challenge the administrative law judge's findings that the newly submitted
evidence is insufficient to establish total disability pursuant to 20 C.F.R.
§§718.204(b)(2)(ii) and (b)(2)(iii). Therefore we affirm those findings. See Skrack v.
Island Creek Coal Co., 6 BLR 1-710 (1983).
Finally, we find no error in the administrative law judge's weighing of the medical opinion
evidence pursuant to 20 C.F.R. §718.204(b)(2)(iv). While the opinion of a treating physician such
as Dr. Kraynak merits consideration, an administrative law judge may nevertheless disregard a treating
physician's opinion that the judge finds is not adequately reasoned. See Lango v. Director,
OWCP, 104 F.3d 573, 577, 21 BLR 2-12, 2-20 (3d Cir. 1997); Schaaf v. Matthews, 574
F.2d 160 (3d Cir. 1978); Tedesco v. Director, OWCP, 18 BLR 1-103 (1994); Onderko v.
Director, OWCP, 14 BLR 1-2 (1989); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985).
Here the administrative law judge rationally so found.
Moreover, it is within the administrative law judge's discretion, as the trier-of-fact, to determine
the weight and credibility to be accorded the medical experts, see Mabe v. Bishop Coal Co.,
9 BLR 1-67 (1986); Sisak v. Helen Mining Co., 7 BLR 1-178, 1-181 (1984), and to determine
whether an opinion is documented and reasoned, 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). The Board is not empowered to
reweigh the evidence or substitute its inferences for those of the administrative law judge if they are
supported by substantial evidence. See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111
(1989); Worley v. Blue Diamond Coal Co., 12 BLR 1-20 (1988). The administrative law judge
acted within his discretion in according greater weight to Dr. Levinson's opinion than to Dr. Kraynak's
because Dr. Levinson has superior qualifications[3] (see Dillon v. Peabody
Coal Co., 11 BLR 1-113 (1988); Scott v. Mason Coal Co., 14 BLR 1-37 (1990);
Wetzel, supra; Decision and Order at 7-8)). The administrative law judge also found that Dr.
Levinson's report is more thorough and better-documented; more consistent with the credible
physicians' reports considered in the prior denials of benefits (Decision and Order at 8); and more
consistent with the objective evidence. See Wetzel, supra; see generally Voytovich v. Consolidation
Coal Co., 5 BLR 1-400 (1982); Decision and Order at 8.
Because the administrative law judge's finding that total disability was not established pursuant
to 20 C.F.R. §718.204(b)(2) is supported by substantial evidence, we affirm it. See Fields,
supra; Rafferty v. Jones & Laughlin Steel Corp., 9 BLR 1-231 (1987); Shedlock v.
Bethlehem Mines Corp., 9 BLR 1-195, aff'd on recon. en banc, 9 BLR 1-236 (1987).
Inasmuch as claimant has failed to establish a change in conditions or a mistake of fact with regard to
that element of his claim, we affirm the administrative law judge's denial of benefits.
Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.
SO ORDERED.
_________________________________
ROY P. SMITH
Administrative Appeals Judge
_________________________________
REGINA C. McGRANERY
Administrative Appeals Judge
_________________________________
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) The Department of Labor has amended the regulations implementing the
Federal Coal Mine Health and Safety Act of 1969, as amended. These regulations became effective
on January 19, 2001, and are found at 20 C.F.R. Parts 718, 722, 725, and 726 (2002). All citations
to the regulations, unless otherwise noted, refer to the amended regulations. As this claim was
pending on January 19, 2001, the revised Section 725.310 regulation does not apply. See 20
C.F.R. §725.2 (2002).
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2) On January 14, 2003, claimant filed a reply brief with a request to file the
brief out of time. That request is granted.
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3) Dr. Levinson is Board-certified in Internal Medicine with a subspecialty in
pulmonary medicine. Employer's Exhibit 1 at 7. Dr. Raymond Kraynak is Board-eligible in family
medicine. Director's Exhibit 38.
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NOTE: This is an UNPUBLISHED BLA Document.
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