BRB No. 98-1509 BLA
CILLIS GENE LANKFORD )
)
Claimant-Petitioner )
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v. )
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EASTOVER COAL COMPANY ) DATE ISSUED:03/31/2000
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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 on Remand of Clement J. Kichuk, Administrative Law Judge, United
States Department of Labor.
Robert M. Estep (Estep & Estep), Tazewell, Tennessee, for claimant.
W. William Prochot (Arter & Hadden LLP), Washington, D.C., for employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and
NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (90-BLA-2405) of Administrative Law Judge Clement J.
Kichuk (the administrative law judge) denying benefits on a duplicate claim[1] 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). This case is before the Board for the third time. In
the original Decision and Order, Administrative Law Judge Thomas Schneider found that claimant established a material
change in conditions pursuant to 20 C.F.R. §725.309. Judge Schneider also found that claimant established a
totally disabling respiratory impairment due to pneumoconiosis. 20 C.F.R. §§718.202(a)(4), 718.203(c)
and 718.204. Accordingly, Judge Schneider awarded benefits. In response to employer's appeal, the Board affirmed
Judge Schneider's finding that claimant established a material change in conditions at 20 C.F.R. §725.309.
However, the Board vacated Judge Schneider's award of benefits since Judge Schneider did not consider all of the
evidence on the merits pursuant to 20 C.F.R. Part 718. Hence, the Board remanded the case to Judge Schneider for
further consideration of all of the evidence at 20 C.F.R. §718.202(a)(4), and, if reached, at 20 C.F.R.
§§718.203, 718.204(c) and 718.204(b). Also, the Board instructed Judge Schneider to render a specific
length of coal mine employment finding. Lankford v. Eastover Mining Co., BRB No. 92-1271 BLA (Nov.
17, 1993)(unpub.).
On remand, Judge Schneider credited claimant with eight years of coal mine employment and found that claimant
established total disability at 20 C.F.R. §718.204(c). However, Judge Schneider found that claimant failed to
establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(1) and (a)(2). In addition, although Judge
Schneider rendered findings supportive of entitlement to benefits at 20 C.F.R. §§718.202(a)(4) and
718.203(c), he nonetheless denied benefits based on his belief that the Board foreclosed a finding that claimant's
pulmonary condition was caused by coal mine employment. In disposing of claimant's appeal, the Board affirmed Judge
Schneider's length of coal mine employment finding and his findings at 20 C.F.R. §§718.202(a)(1), (a)(2)
and 718.204(c). Further, the Board held that Judge Schneider's failure to render a finding at 20 C.F.R.
§718.202(a)(3) was harmless error since none of the presumptions thereunder applies. However, the Board
reversed Judge Schneider's denial of benefits since Judge Schneider made findings of fact supportive of entitlement to
benefits at 20 C.F.R. §§718.202(a)(4) and 718.203 and denied benefits solely because he considered the
Board's instructions on remand to mandate foreclosing causation. Lastly, the Board held that Judge Schneider's decision
substantially complies with the material change in conditions standard adopted by the United States Court of Appeals
for the Sixth Circuit in Sharondale Corp. v. Ross, 42 F.3d 993, 997, 19 BLR 2-10, 2-18 (6th Cir. 1994).
Lankford v. Eastover Coal Co., BRB No. 94-2479 BLA (June 5, 1995)(unpub.).
In a subsequent Order, the Board granted employer's Motion for Reconsideration and affirmed Judge Schneider's
finding that claimant established the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(4). However, the
Board vacated Judge Schneider's finding that claimant established a material change in conditions at 20 C.F.R.
§725.309 in light of the holding of the Sixth Circuit in Ross. Further, the Board vacated Judge
Schneider's finding that the evidence is sufficient to establish total disability at 20 C.F.R. §718.204(c),[2] and remanded the case for further consideration of all of the relevant
evidence at 20 C.F.R. §718.204(b), (c). Lankford v. Eastover Coal Co., BRB No. 94-2479 BLA
(Order)(Sept. 30, 1997)(unpub.).
On the most recent remand, the case was transferred to the administrative law judge, who found that claimant
established a material change in conditions at 20 C.F.R. §725.309. The administrative law judge also found the
evidence insufficient to establish total disability on the merits at 20 C.F.R. §718.204(c)(1)-(4). Further, the
administrative law judge found the evidence insufficient to establish total disability due to pneumoconiosis on the merits
at 20 C.F.R. §718.204(b). Accordingly, the administrative law judge denied benefits.
On appeal, claimant contends that the transfer of the case from Judge Schneider to the administrative law judge
without a de novo hearing was unfair and unjust. Claimant also contends that the administrative law judge
erred in finding the evidence insufficient to establish total disability on the merits at 20 C.F.R. §718.204(c)(4).
Claimant further contends that the administrative law judge erred in finding the evidence insufficient to establish total
disability due to pneumoconiosis on the merits at 20 C.F.R. §718.204(b). Employer responds, urging affirmance
of the administrative law judge's Decision and Order on Remand. Alternatively, employer contends that the
administrative law judge erred in failing to reopen the record to allow the parties to submit proof responsive to the
change in the material change in conditions standard adopted by the Sixth Circuit in Ross, and in failing to
properly determine whether the newly submitted evidence is sufficient to establish a material change in conditions at 20
C.F.R. §725.309. The Director, Office of Workers' Compensation Programs, has declined to participate in this
appeal.[3]
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, we will address claimant's contention that the administrative law judge erred in finding the evidence
insufficient to establish total disability on the merits at 20 C.F.R. §718.204(c)(4).[4] Whereas Drs. Clarke and Reinoso[5] opined that
claimant suffers from a disabling respiratory impairment, Director's Exhibit 3; Claimant's Exhibit 2, Drs. Baker and
Dahhan opined that claimant does not suffer from a disabling respiratory impairment, Director's Exhibit 3; Employer's
Exhibits 1, 3. Drs. Anderson,[6] Bushey, Hays and Wright did not
render an opinion with regard to whether claimant suffers from a disabling respiratory impairment. Director's Exhibits
3, 16; Claimant's Exhibits 1, 4. The administrative law judge properly accorded greater weight to the opinions of Drs.
Baker and Dahhan than to the contrary opinions of Drs. Clarke and Reinoso because he found their opinions to be better
supported by the underlying objective evidence.[7] See
Minnich v. Pagnotti Enterprises, Inc., 9 BLR 1-89, 1-90 n.1 (1986); Wetzel v. Director, OWCP,
8 BLR 1-139 (1985); Pastva v. The Youghiogheny and Ohio Coal Co., 7 BLR 1-829 (1985). Thus, we
reject claimant's assertion that the administrative law judge erred in discrediting the opinions of Drs. Clarke and
Reinoso.[8] Moreover, inasmuch as the administrative law judge
properly discredited the only medical opinions of record which could support a finding of total disability,[9] we reject claimant's assertion that the administrative law judge erred in
failing to consider the testimony of claimant since it is supported by Dr. Hays, his treating physician.[10] See 20 C.F.R. §718.204(d)(2); Fields v.
Island Creek Coal Co., 10 BLR 1-19 (1987); Matteo v. Director, OWCP, 8 BLR 1-200 (1985). Thus,
inasmuch as it is supported by substantial evidence, we affirm the administrative law judge's finding that the medical
opinion evidence is insufficient to establish total disability on the merits at 20 C.F.R. §718.204(c)(4).
Next, we address claimant's contention that since Judge Schneider observed his testimony and found it to be
credible, the transfer of the case from Judge Schneider to the administrative law judge without a de novo
hearing was unfair and unjust. In an order dated March 20, 1998, Administrative Law Judge Thomas M. Burke notified
the parties that the case would be transferred to another administrative law judge because Judge Schneider was no longer
with the Office of Administrative Law Judges. On April 17, 1998, claimant filed an Objection to Substitution of
Administrative Law Judge. In an order dated May 21, 1998, the administrative law judge acknowledged that claimant
filed an objection to the appointment of another administrative law judge for a decision on the record in this case.
However, the administrative law judge did not render an express finding with respect to claimant's objection.
Nonetheless, the administrative law judge correctly stated that "[i]n the case of a living miner's claim, a finding of total
disability may not be made solely on the miner's statements or testimony." Decision and Order on Remand at 7 n.3;
20 C.F.R. §718.204(d)(2). The administrative law judge observed that "Judge Schneider's previous finding of
total disability was based upon Claimant's subjective complaints and actions, together with the medical opinion of Dr.
Hays." Decision and Order on Remand at 12. The administrative law judge also observed that "[t]he Board, however,
has clearly noted that Dr. Hays failed to express an opinion regarding total disability, and that Claimant's testimony
alone is insufficient to support a finding under Section 718.204." Id. Further, as previously noted, the
administrative law judge weighed the conflicting medical opinion evidence and found it to be insufficient to establish
total disability on the merits at 20 C.F.R. §718.204(c)(4). Thus, inasmuch as the credibility of claimant's
testimony is not at issue with respect to the administrative law judge's finding on the merits at 20 C.F.R.
§718.204(c), see 20 C.F.R. §718.204(d)(2); Fields, supra; Matteo,
supra, we reject claimant's assertion that the administrative law judge erred in transferring the case from Judge
Schneider to the administrative law judge without a de novo hearing. See Edmiston v. F
& R Coal Co., 14 BLR 1-65 (1990); Berka v. North American Coal Corp., 8 BLR 1-183 (1985);
White v. Director, OWCP, 7 BLR 1-348 (1984).
Since claimant failed to establish total disability on the merits at 20 C.F.R. §718.204(c), an essential
element of entitlement, we hold that the administrative law judge properly denied benefits under 20 C.F.R. Part 718.[11] See Trent v. Director, OWCP, 11 BLR 1-26
(1987); Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en banc).
Accordingly, the administrative law judge's Decision and Order on Remand denying benefits is affirmed.
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)Claimant filed his initial claim on July 29, 1981. Director's
Exhibit 16. This claim was denied by the Department of Labor on February 18, 1983
because claimant failed to establish the existence of pneumoconiosis and total
disability. Id. Because claimant did not pursue this claim any further,
the denial became final. Claimant filed his most recent claim on October 27, 1987.
Director's Exhibits 1, 2.
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2)The Board noted that "[t]he administrative law judge based his
finding of total disability on claimant's lay testimony regarding his condition as
supported by the reports of Dr. Hayes (sic), his treating physician." Lankford
v. Eastover Coal Co., BRB No. 94-2479 BLA, slip op. at 2 (Order)(Sept. 30,
1997)(unpub.). However, the Board noted that "Dr. Hayes (sic) did not address the
issue of total disability, and lay testimony is insufficient to establish this
required element of entitlement in the absence of supporting evidence."
Id.
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3)Inasmuch as the administrative law judge's finding that the
evidence is insufficient to establish total disability on the merits at 20 C.F.R.
§718.204(c)(1)-(3) is not challenged on appeal, we affirm this finding. See
Skrack v. Island Creek Coal Co., 6 BLR 1-170 (1983).
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4)Claimant asserts that the administrative law judge should not
have considered the issue of total disability on remand since Judge Schneider's
finding that claimant established total disability at 20 C.F.R. §718.204(c)
was final. Contrary to claimant's assertion, the administrative law judge properly
complied with the Board's instructions to consider whether the evidence is
sufficient to establish total disability on the merits at 20 C.F.R.
§718.204(c) since Judge Schneider did not consider all of the evidence of
record thereunder. See generally Hall v. Director, OWCP, 12 BLR 1-80
(1988).
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5)The administrative law judge stated that because "Dr. Reinoso
relied upon the opinion of Dr. Clarke in this finding..., the record actually
contains one opinion of total disability, namely the opinion of Dr. Clarke."
Decision and Order on Remand at 13. Dr. Reinoso found that "[i]n spite of the
negative biopsies, I still agree with Dr. Clark (sic) that [claimant] suffers from
[a] ventilatory impairment producted (sic) by the breathing of irritants associated
with coal mining employment." Claimant's Exhibit 2.
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6)Dr. Anderson diagnosed an "[o]rthopedic injury resulting in
[claimant having to] stop working," and noted "[n]ormal pulmonary function studies
and arterial blood gases." Director's Exhibit 16.
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7)The administrative law judge stated that "the medical opinion
evidence of Drs. Baker and Dahhan...[is] supported by [the] objective medical
evidence." Decision and Order on Remand at 14. The administrative law judge
observed that Dr. Baker's "finding is supported by the pulmonary function studies
and arterial blood gas tests, performed by Dr. Baker, which produced normal, non-
qualifying results." Id. The administrative law judge also observed that
"Dr. Dahhan found 'no objective evidence of any pulmonary impairment and/or
disability based on the pulmonary function studies, [and] blood gases.'" Id.
In contrast, the administrative law judge stated that "Dr. Clarke's pulmonary
function studies failed to produce qualifying results, and he did not perform any
arterial blood gas tests." Id. at 13. The administrative law judge also
stated that "Dr. Reinoso found total disability, despite the fact that he neither
performed, nor reviewed pulmonary function studies or arterial blood gas studies."
Id.
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8)Claimant asserts that the administrative law judge erred in
according greater weight to the opinion of Dr. Dahhan than to the contrary opinion
of Dr. Clarke since Dr. Dahhan did not examine him. In Collins v. Secretary of
Health and Human Services, 734 F.2d 1177, 6 BLR 2-54 (6th Cir. 1984), the
United States Court of Appeals for the Sixth Circuit, within whose jurisdiction
this case arises, held that the opinion of a non-examining physician, with respect
to matters not addressed by an examining physician, was insufficient to defeat
entitlement to benefits. In the instant case, Dr. Baker, who examined claimant,
addressed the issue of total disability and opined that claimant does not suffer
from a disabling respiratory impairment. Director's Exhibit 3. Thus, inasmuch as
an examining physician has found that claimant does not suffer from a disabling
respiratory impairment, we reject claimant's assertion that the administrative law
judge erred in according greater weight to the opinion of Dr. Dahhan than to the
contrary opinion of Dr. Clarke since Dr. Dahhan did not examine him. See
Collins, supra; see also Newland v. Consolidation Coal Co., 6 BLR 1-1306
(1984).
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9)The Board will not interfere with credibility determinations
unless they are inherently incredible or patently unreasonable. See Tackett v.
Cargo Mining Co., 12 BLR 1-11, 1-14 (1988); Calfee v. Director, OWCP,
8 BLR 1-7 (1985).
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10)Further, inasmuch as Dr. Hays did not render an opinion with
regard to the issue of total disability, we reject claimant's assertion that the
administrative law judge erred in failing to accord greater weight to the opinion
of Dr. Hays based on his status as claimant's treating physician. See 20
C.F.R. §718.204(c)(4); see also Tussey v. Island Creek Coal Co., 982
F.2d 1036, 17 BLR 2-16 (6th Cir. 1993).
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11)In view of our disposition of this case on the merits at 20
C.F.R. §718.204(c), we decline to address the administrative law judge's
findings at 20 C.F.R. §§725.309 and 718.204(b). See Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc).
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NOTE: This is an UNPUBLISHED BLA Document.
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