BRB No. 02-0610 BLA
CARL GIVENS )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:02/25/2003
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Joseph E. Kane, Administrative Law
Judge, United States Department of Labor.
Carl Givens, Pineville, Kentucky, pro se.
Jeffrey S. Goldberg (Howard Radzely , 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: SMITH, HALL and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Decision and Order
(01-BLA-0831) of Administrative Law Judge Joseph E. Kane denying benefits on a
duplicate[1] 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).[2] The administrative law judge credited claimant with six years of coal mine employment and
found that claimant's previous claim was denied on the ground that the evidence was insufficient to establish the
existence of pneumoconiosis and total disability due to pneumoconiosis. The administrative law judge further
found that the newly submitted evidence was also insufficient to establish pneumoconiosis and total disability due
to pneumoconiosis pursuant to 20 C.F.R. §§718.202(a) and 718.204(c). Consequently, the
administrative law judge concluded that claimant failed to establish a material change in conditions pursuant to
20 C.F.R. §725.309(d) (2000).[3] Accordingly, the administrative
law judge denied benefits. Claimant appeals, generally challenging the denial of benefits.. The Director, Office
of Workers' Compensation Programs responds, urging affirmance of the denial of benefits.
In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue to be
whether the Decision and Order below is supported by substantial evidence. Stark v. Director, OWCP,
9 BLR 1-36 (1986). We must affirm the findings of the administrative law judge if they are supported by
substantial evidence, are rational, and are 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 order to establish entitlement to benefits under Part 718 in a living miner's claim, a claimant must
establish the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that
the pneumoconiosis is totally disabling. 20 C.F.R. §§718.3, 718.202, 718.203, 718.204. Failure to
establish any one of these elements precludes entitlement. Trent v. Director, OWCP, 11 BLR 1-26 (1987);
Gee v. W. G. Moore and Sons, 9 BLR 1-4 (1986) (en banc); Perry v. Director, OWCP,
9 BLR 1-1 (1986) (en banc).
After considering the administrative law judge's Decision and Order, the
issues on appeal and the evidence of record, we conclude that his Decision and
Order denying benefits is supported by substantial evidence and that there is no
reversible error contained therein. Where a claimant files a claim for benefits
more than one year after the final denial of a previous claim, the subsequent claim
must also be denied unless the administrative law judge finds that there has been
material change in conditions. 20 C.F.R. §725.309(d)(2000). The United
States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case
arises, held, that in determining whether the change in conditions has been
established, the administrative law judge must determine whether the evidence
developed since the prior denial establishes at least one of the elements
previously adjudicated against claimant. Sharondale Corp. v. Ross, 42 F.3d
993, 19 BLR 2-10 (6th Cir. 1994).
In considering the evidence regarding the existence of pneumoconiosis the
administrative law judge correctly found that none of the newly submitted x-ray
readings was positive for the presence of pneumoconiosis. 20 C.F.R.
§718.202(a)(1); Edmiston v. F & R Coal Co., 14 BLR 1-65 (1990);
Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989); Trent,
supra; Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985); Decision
and Order at 9; Director's Exhibit 7, 9, 16, 17.
Further, the administrative law judge properly concluded that the provisions
of Section 718.202(a)(2) and the presumptions enumerated at Section 718.202(a)(3)
are inapplicable as the record contains no biopsy evidence or evidence of
complicated pneumoconiosis, see 20 C.F.R. §718.304; claimant filed his
claim after January 1, 1982, see 20 C.F.R. §718.305; and this is not
a survivor's claim. See 20 C.F.R. §718.306; Decision and Order at 9.
Moreover, the administrative law judge rationally found that claimant failed
to establish the existence of pneumoconiosis pursuant to Section 718.202(a)(4) as
he found that none of the newly submitted medical opinions were sufficiently
reasoned and documented to demonstrate a material change in conditions. See
20 C.F.R. §718.202(a)(4); Lafferty v. Cannelton Industries, Inc., 12
BLR 1-190 (1989); Kuchwara v. Director, OWCP, 7 BLR 1-167 (1984);
Perry, supra; Decision and Order on Remand at 10. The administrative
law judge reviewed the three letters of Dr. Uy, diagnosing pneumoconiosis, and the
contrary opinions of Drs. Dahhan and Burki, both of whom found that claimant did
not suffer from pneumoconiosis. Decision and Order at 10; Director's Exhibits 7,
13, 20, 23, 25. The administrative law judge acted within his discretion as
fact-finder in according less weight to Dr. Uy's opinion, despite his status as
claimant's treating physician, because Dr. Uy's opinion did not provide
documentation or a "reasoned progression of analysis leading to his conclusion"
regarding the existence of pneumoconiosis. Decision and Order at 10. Peabody
Coal Co. v. Groves, 277 F.3d 829, 22 BLR 2-320 (6th Cir. 2002); Clark,
supra. Furthermore, because Drs. Dahhan and Fino found that claimant did
not suffer from pneumoconiosis, their opinions cannot satisfy claimant's burden of
proof.
The Board is not empowered to reweigh the evidence nor substitute its
inferences for those of the administrative law judge. 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's finding that the weight of the
newly submitted evidence was insufficient to establish the existence of
pneumoconiosis pursuant to Section 718.202(a) is supported by substantial evidence,
and thus is affirmed. Consequently, because the newly submitted evidence does not
establish the existence of pneumoconiosis, claimant may not demonstrate that his
impairment arose out of coal mine employment or caused, in part, his total
disability. Thus, the administrative law judge's finding that claimant has failed
to establish a material change in conditions pursuant to Section 725.309 (2000) is
affirmed.
Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)Claimant filed previous claims on April 2, 1974; September 9,
1982; May 7, 1984, and November 2, 1995. Director's Exhibits 29-32. The instant
claim was filed on February 16, 2000, over a year after the 1995 claim was denied
by Administrative Law Judge George P. Morin on February 20, 1998. Director's
Exhibits 1, 32-9.
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2)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 (2001). All citations to the regulations, unless
otherwise noted, refer to the amended regulations.
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3)The revisions to the regulation at 20 C.F.R. §725.309 do
not apply to claims, such as this, which were pending on January 19, 2001. 20
C.F.R. §725.2.
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NOTE: This is an UNPUBLISHED BLA Document.
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