BRB No. 00-0217 BLA

JOHN M. ADAIR                      )
                         )
          Claimant-Respondent      )
                         )
     v.                            )
                         )
FLORENCE MINING COMPANY       )    DATE ISSUED:01/19/2001            
                              
                         )
          Employer-Petitioner      )
                         )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order of Daniel L. Leland, Administrative Law
     Judge, United States Department of Labor.

     Robert J. Bilonick (Pawlowski, Bilonick & Long), Ebensburg,
     Pennsylvania, for claimant.

     Hilary S. Daninhirsch (Thompson, Calkins & Sutter), Pittsburgh,
     Pennsylvania, for employer.

     Before:  SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order (98-BLA-10) of Administrative Law
Judge Daniel L. Leland (the administrative law judge) awarding 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).  In
this duplicate claim, the administrative law judge found that claimant's prior
claim had been finally denied by the Decision and Order of Administrative Law Judge
Ralph A. Romano on June 28, 1998 as claimant failed to establish a totally disabling respiratory impairment at Section 718.204(c).[1]   The administrative law judge found the newly
submitted evidence sufficient to establish a material change in conditions at 20
C.F.R. §725.309 because it established a totally disabling respiratory
impairment.  On the merits, the administrative law judge credited claimant with
thirty-two years and two months of coal mine employment and, based on the filing
date of  September 9, 1997, adjudicated this claim pursuant to 20 C.F.R. Part 718. 
The administrative law judge found the evidence of record sufficient to establish
the existence of pneumoconiosis arising out of coal mine employment at 20 C.F.R.
§§718.202(a)(1)-(4), 718.203(b) based on employer's concession.  The
administrative law judge also found the evidence of record sufficient to
demonstrate the presence of a totally disabling respiratory impairment due to
pneumoconiosis at 20 C.F.R. §718.204(c), (b).  Accordingly, benefits were
awarded.  On appeal, employer challenges the findings of the administrative law
judge at Sections 725.309 and 718.204(b).  Claimant responds, urging affirmance of
the Decision and Order of the administrative law judge as supported by substantial
evidence.  The Director, Office of Workers' Compensation Programs (the Director),
has filed a letter indicating that he will not 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 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.[3]   Trent v. Director,
OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc).

     Employer first contends that the administrative law judge erred in failing to
consider all the evidence, both old and new, in determining whether a material
change in conditions was established.  We disagree.  As this case arises within the
jurisdiction of the United States Court of Appeals for the Third Circuit, the
administrative law judge properly applied the standard enunciated in Labelle
Processing Co. v. Swarrow, 72 F.3d 308, 20 BLR 2-76 (3d Cir. 1995) for deciding
whether claimant demonstrated a material change in conditions at Section 725.309. 
In Swarrow, the court held that in ascertaining whether a claimant
established a material change in conditions pursuant to Section 725.309, the
administrative law judge must consider and weigh all the newly submitted evidence
to determine if claimant has established at least one of the elements of
entitlement previously decided against him.  Thus, contrary to employer's argument,
the administrative law judge properly reviewed only the evidence submitted
following the denial of claimant's prior claim in determining whether claimant
established a material change in conditions. Swarrow, supra.

     Next, employer contends that the administrative law judge erred in failing to
reconcile his finding of total disability with the normal objective studies. 
Specifically, employer contends that the administrative law judge failed to explain
why he relied on the June 4, 1997 pulmonary function study as a basis for his
holding that the miner was totally disabled when the record contained three more
recent pulmonary function studies which were non qualifying.[4]   Employer also contends that the administrative law judge erred in
relying on the opinions of Drs. Strother and Schaaf to find total disability when
their opinions on total disability were not supported by objective testing, and
that the administrative law judge erred in relying on the opinions of Drs. Ignacio,
Tuteur and Bush to support a finding of total disability as there was no evidence
that any of these physicians actually offered a medical opinion that claimant was
disabled.

     In weighing the evidence on the presence or absence of a disabling pulmonary
impairment at Section 718.204(c), the administrative law judge acted within his
discretion when he found it sufficient to support claimant's burden of proof.  The
administrative law judge's finding indicates that he relied primarily upon the
medical opinions of Drs.  Schaaf and Strother.  In finding the reports of Drs.
Schaaf and Strother reasoned and documented, the administrative law judge
permissibly found that their opinions were supported by objective studies and the
physical examinations they performed, as well as claimant's credible complaints of
shortness of breath, his recent hospitalizations for exacerbations of shortness of
breath, and his use of pulmonary medications. See Church v. Eastern Associated
Coal Co., 20 BLR 1-8 (1996): Carson v. Westmoreland Coal Co., 19 BLR 1-16 (1994); Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987). 
Furthermore, the administrative law judge did not err when he accorded
determinative weight to the opinions of Drs. Schaaf and Strother as the
administrative law judge may credit medical opinions of total disability when, as
in the instant case, the physician explains how he diagnosed total disability
despite nonqualifying objective tests, and his report is supported by other
underlying documentation.[5]   See Smith v.
Director, OWCP, 8 BLR 1-258; Fuller v. Gilbraltar Coal Corp., 6 BLR 1-1291 (1984).  We, therefore, affirm the finding of the administrative law judge
that claimant established the presence of a totally disabling respiratory
impairment at Section 718.204(c)(1)-(4), and thus, a material change in conditions
at Section 725.309 as it is supported by substantial evidence and is in accordance
with law.

     Turning to the administrative law judge's finding at Section 718.204(b),
employer contends that the administrative law judge erred in finding the opinions
of Drs. Strother, Tuteur, Bush and Garrettson hostile to the Act and therefore
rejecting their opinions on the issue of causation.  Specifically, employer
contends that the administrative law judge erred in discrediting the opinions of
Drs. Strother, Tuteur, Bush and Garrettson as hostile to the Act since they did not
foreclose the possibility that simple pneumoconiosis can be disabling.

     Concerning the medical opinions at issue, employer correctly argues that the
administrative law judge improperly rejected these opinions on the ground that they
were hostile to the Act.  A medical report can be rejected as hostile to the Act
if it forecloses any possibility that simple pneumoconiosis can be disabling.
Searls v. Southern Ohio Coal Co., 11 BLR 1-161 (1988); Butela v. United
States Steel Corp., 8 BLR 1-48 (1985); see Penn Allegheny Coal Co. v.
Mercatell, 878 F.2d 106, 12 BLR 2-305 (3d Cir. 1989);.  Accordingly, inasmuch
as Drs. Strother, Tuteur, Bush and Garrettson have not stated that simple
pneumoconiosis is never disabling, we vacate the administrative law judge's finding
on this issue and remand for further consideration of these opinions at Section
718.204(b). See Employer's Exhibit 6 at 38-40; Employer's Exhibit 7, 8;
Employer's Exhibit 10 at 38-39; Tackett v. Director, OWCP, 7 BLR 1-703
(1985).

     Next, employer contends that the administrative law judge erred in failing to
reconcile the various inconsistencies in the evidence regarding claimant's smoking
history.  Employer contends that this error is prejudicial as the administrative
law judge credited Dr. Schaaf's opinion, attributing claimant's pulmonary
impairment to coal mine employment, over the opinions of Drs. Tuteur, Bush and
Garrettson, attributing claimant's impairment to smoking, when Dr. Schaaf
acknowledged that if he had been given the history of heavy tobacco usage, upon
which the other doctors relied, he would have given greater consideration to
smoking as the cause of claimant's impairment.  Specifically, on deposition Dr.
Schaaf acknowledged that the other physicians had elicited a heavier tobacco usage
by claimant than he had, and stated that if he thought claimant had smoked two and
a-half packs of cigarettes a day he would be more willing to think about smoking
as a cause of claimant's respiratory problem.  Claimant's Exhibit 10 at 47-48.

     The administrative law judge found that claimant testified that he quit
smoking in 1960 after having smoked one and one-half packs of cigarettes a day
since the age of fifteen, Hearing Transcript 21-22, although claimant admitted that
it was possible that he had testified to smoking two and one-half packs a day at
the hearing on his previous claim.  Hearing Transcript at 32-36; Decision and Order
at 3.  Dr. Strother found that claimant had smoked one to one and one-half packs
of cigarettes a day from age fourteen to age thirty-seven.  Employer's Exhibit 6
at 18; Director's Exhibits 29, 31.  Dr. Bush determined that claimant had smoked
cigarettes for twenty-four years until 1960 at the rate of one-half pack a day
during the week and two to two and one-half packs a day on the weekends. 
Employer's Exhibit 7.  Dr. Tuteur found a smoking history of twenty to twenty-five
years, with a few cigarettes a day during the week followed by one and one-half
packages or more per day on weekends.  Employer's Exhibit 9.  Dr. Schaaf reported
that claimant told him he had started smoking at age fifteen and smoked six to
eight cigarettes a day during the week at the maximum and up to a pack and a half
on weekends, but that he quit smoking in 1960.  Claimant's Exhibit 3.  Dr.
Garrettson found that claimant stopped smoking in 1960 after smoking for thirty to
thirty-four years at the rate of eight to ten cigarettes a day and more on the
weekends.  Employer's Exhibit 10 at 32-33.

     While the physicians agree that claimant quit smoking in 1960, there are
inconsistent findings regarding how heavy claimant's tobacco usage was during the
time he smoked.  Employer's Exhibits 6, 7, 8, 9, 10; Claimant's Exhibit 3, 10.  As
a finding of heavy tobacco usage could undermine the weight to be accorded Dr.
Schaaf's opinion, the sole support for the administrative law judge's finding that
causation was established at Section 718.204(b), we must remand the case for the
administrative law judge to reconsider this evidence. See Claimant's Exhibit
10 at 47-48; Tackett, supra; Maypray v. Island Creek Coal Co.,
7 BLR 1-683 (1985).  Moreover, in evaluating the medical evidence, the
administrative law judge may not substitute his opinion for that of a qualified
expert. Hess v. Clinchfield Coal Co., 7 BLR 1-295 (1984).

     Employer also contends that the administrative law judge erred in discrediting
Dr. Strother's causation opinion because he was the only physician who diagnosed
asthma and attributed claimant's pulmonary disability to asthma.  Employer contends
that the administrative law judge erred in discrediting Dr. Strother's opinion on
this basis in light of the fact that his opinion was thoroughly explained and in
light of his high degree of expertise as a pulmonologist.  Further, employer
contends that the evidence of record, which documents a history of wheezing,
supports Drs. Strother's diagnosis of asthma and the intermittent reversibility of
the miner's pulmonary function studies is consistent with the bronchospastic nature
of asthma.  Employer's Brief at 12.

     The administrative law judge found Dr. Strother's opinion that claimant's
pulmonary disability was due to asthma suspect because: he was the only physician
to make this diagnosis; Dr. Schaaf found that claimant did not have a history of
wheezing or asthma; and the other physicians of record disagreed as to whether
claimant's ventilatory studies were reversible.  As employer contends, however, the
record does contain evidence of wheezing, including Dr. Schaaf's opinion,
Claimant's Exhibits 1, 3; Claimant's Exhibit 10 at 16-17; Employer's Exhibit 8;
Employer's Exhibit 9; Employer's Exhibit 10 at 30-31, which the administrative law
judge did not discuss in his evaluation of Dr. Strother's opinion. See
Employer's Exhibit 6 at 21-22, 28-29.  Nevertheless, as the administrative law
judge reasonably rejected the opinion on the other two grounds, we affirm the
administrative law judge's finding regarding Dr. Strother's opinion. See Kozele
v. Rochester & Pittsburgh Coal Co., 6 BLR 1-378 (1983).

     Finally, employer argues that the administrative law judge's credibility
findings regarding the medical opinion of Dr. Schaaf are insufficient as the
administrative law judge has not provided the necessary findings of fact and law
to support his decision to accord determinative weight to this opinion as required
by 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). See  Wojtowicz v. Duquesne Light Co., 12 BLR
1-162 (1989).

     We agree.  The administrative law judge's conclusory statement, "I find Dr.
Schaaf's opinion on causation the most credible opinion of the record[,]" Decision
and Order at 9, does not contain a sufficient discussion of the reasons and basis
for the administrative law judge's finding.  We, therefore, vacate the findings of
the administrative law judge regarding the medical opinions at Section 718.204(b)
and remand this case for further consideration of the medical opinion evidence
thereunder.
     Accordingly, the Decision and Order of the administrative law judge awarding
benefits is affirmed in part, vacated in part, and this case is remanded to the
administrative law judge for further consideration consistent with this opinion.

     SO ORDERED.



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

To Top of Document

Footnotes.
 1) Claimant filed his initial application for benefits on July 14,
1980.  See Director's Exhibit 38.  The district director found claimant
entitled to benefits.  Id.  Employer contested. Id.  Following a
hearing on the merits, Administrative Law Judge Ralph A. Romano found the evidence
of record sufficient to establish the existence of pneumoconiosis arising out of
coal mine employment pursuant to 20 C.F.R. §§718.202(a)(1), 718.203(b),
but insufficient to demonstrate the presence of a totally disabling respiratory
impairment at 20 C.F.R. §718.204(c), and denied benefits. Id. Claimant
filed his present application for benefits on March 28, 1997. See Director's
Exhibit 1.
 Back to Text

 2) We affirm the findings of the administrative law judge on the
length of coal mine employment, on the designation of employer as the responsible
operator, and at 20 C.F.R. §§718.202(a)(1)-(3), 718.203(b) as
unchallenged on appeal. See Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983).
 Back to Text

 3) 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).
 Back to Text

 4) In reviewing the newly submitted evidence regarding the presence
of a totally disabling respiratory impairment, the administrative law judge
discredited the qualifying pulmonary function studies performed on April 14, 1997
and May 27, 1997 as he found that these tests were invalid. See Director's
Exhibits 14, 15, 17, 18, 37; Decision and Order at 7.  The administrative law judge
correctly concluded that the June 4, 1997 pulmonary function performed by Dr.
Strother was qualifying; that the three most recent pulmonary function studies of
record were valid and nonqualifying; that the new blood gas study evidence was
nonqualifying; i.e., tests performed on April 14, 1997 and May 13, 1998.
See Director's Exhibit 21; Employer's Exhibit 7, and that the record
contained no evidence of cor pulmonale. See Decision and Order at 7. 
Likewise, the administrative law judge  concluded that Dr. Garrettson opined that
claimant could perform his usual coal mine employment, that although Drs. Ignacio,
Tuteur and Bush did not find claimant totally disabled, they did not find that
claimant was not totally disabled and capable of performing his usual coal mine
employment; and that Drs. Schaaf and Strother, who are Board-certified
pulmonologists in internal medicine and pulmonary diseases, see Director's
Exhibits 29, 31; Claimant's Exhibits 3, 10; Employer's Exhibit 6, found claimant
totally disabled from performing his usual coal mine employment because of a
respiratory impairment. Id.
 Back to Text

 5) In their depositions, both Dr. Schaaf and Dr. Strother
explained, in detail, the bases for their diagnoses of a totally disabling
respiratory impairment. See Claimant's Exhibit 10; Employer's Exhibit 6. 
Dr. Schaaf testified that he based his disability finding on what claimant could
do functionally and the objective data.  Dr. Schaaf stated that he based his total
disability diagnosis on the FEV1/FVC ratio in his pulmonary function study and
further explained that this ratio shows an impairment of air flow and indicates
that claimant has an obstructive airways disease. See Claimant's Exhibit 10
at 10-11.
 Back to Text

To Top of Document