BRB No. 91-1972 BLA
MATTIE HARRIS )
(Widow of LEDFORD HARRIS) )
)
Claimant-Petitioner )
)
v. )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:10/27/1994
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER
Appeal of the Decision and Order on Remand of Aaron Silverman,
Administrative Law Judge, United States Department of Labor.
David G. Mawn (Appalachian Research and Defense Fund of Kentucky, Inc.),
Barbourville, Kentucky, for claimant.
Russell A. Shultis (Thomas S. Williamson, Jr., 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 and McGRANERY, Administrative Appeals Judges, and SHEA,
Administrative Law Judge.*
PER CURIAM:
Claimant, the miner's surviving spouse, appeals the Decision and Order on
Remand (89-BLA-24) of Administrative Law Judge Aaron Silverman denying benefits on
a miner's claim and a survivor's 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
*Sitting as a temporary Board member by designation pursuant to the Longshore and
Harbor Workers' Compensation Act as amended in 1984, 33 U.S.C.
§921(b)(5)(1988).
et seq. (the Act).[1] This case is on
appeal before the Board for the third time. In his original Decision and Order,
the administrative law judge credited the miner with five years of qualifying coal
mine employment, but found the evidence insufficient to establish either the
existence of pneumoconiosis pursuant to 20 C.F.R. §410.414(a) or total
disability pursuant to 20 C.F.R. §§410.414(c) and 410.426(d).
Accordingly, benefits were denied. On appeal, the Board vacated the administrative
law judge's findings regarding the length of coal mine employment, and remanded
this case for the administrative law judge to determine whether the miner's truck
driving employment constituted the work of a miner. Blevins v. Director,
OWCP, BRB No. 84-2661 BLA (March 17, 1986)(unpublished). On remand, the
administrative law judge again credited the miner with five years of coal mine
employment after finding that the miner's hauling activities did not qualify as
coal mine employment, and consequently denied benefits. Claimant did not appeal
that denial, but requested modification pursuant to 20 C.F.R. §725.310 on the
issue of the length of coal mine employment. The administrative law judge
determined that a new hearing was not warranted, and denied modification pursuant
to Section 725.310 since he found that new evidence submitted in support thereof
did not provide a basis for reopening the case. On appeal, the Board affirmed the
administrative law judge's findings pursuant to Section 725.310 as based on
substantial evidence, and declined to remand this case for consideration pursuant
to 20 C.F.R. §410.490 inasmuch as the administrative law judge's evaluation
of the x-ray and pulmonary function study evidence of record precluded invocation
thereunder. Harris v. Director, OWCP, BRB No. 89-1905 BLA (April 13,
1990)(unpublished).
On appeal to the United States Court of Appeals for the Sixth Circuit, the
parties agreed that the administrative law judge did not properly evaluate the x-ray evidence of record since he failed to specifically address two positive x-ray
interpretations. Consequently, this case was remanded to the Board with
instructions to remand to the administrative law judge for reconsideration of
claimant's application in light of all relevant evidence. On remand, the
administrative law judge found that the weight of the x-ray evidence was negative
for pneumoconiosis, and thus denied benefits. In the instant appeal, claimant
challenges the administrative law judge's weighing of the x-ray evidence, and
maintains that the administrative law judge had a duty to assist claimant in
developing the record. The Director, Office of Workers' Compensation Programs (the
Director), responds, urging affirmance.
The Board's scope of review is defined by statute. The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with 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).
Turning first to the procedural issue, claimant contends that the
administrative law judge erred in failing to assist her in developing the record
herein. Specifically, claimant argues that since she was unrepresented by counsel
during modification procedures, the administrative law judge had a duty to explain
to her the distinctions between the various radiological qualifications of x-ray
readers and to insure that she obtained a positive B-reader interpretation.
Claimant's argument is without merit. While an administrative law judge, in order
to conduct a full and fair hearing, must inform a pro se claimant of the
right to be represented by an attorney of choice, without charge, the
administrative law judge is under no duty to assist claimant in developing the
claim. Shapell v. Director, OWCP, 7 BLR 1-304 (1984). Moreover, the
Director correctly notes that claimant was represented by counsel during
development of the claim before the district director and at the time of the
hearing on the merits before the administrative law judge. See Director's
Exhibits 23, 25, 43. Consequently, we reject claimant's request for a remand to
allow claimant to further develop the record herein.[2]
Claimant next asserts that the four positive x-ray interpretations of record
are sufficient to establish invocation pursuant to Section 410.490(b), and the
single negative interpretation of Dr. Sargent should be barred in light of the
rereading prohibition at Section 413(b) of the Act, 30 U.S.C. §923(b).
Contrary to claimant's argument, however, Dr. Sargent's negative rereading does not
violate Section 413(b) of the Act inasmuch as the record does not contain a prior,
positive x-ray reading by a Board-eligible or Board-certified radiologist. 30
U.S.C. §923(b). The administrative law judge accurately determined that the
record did not reflect any special radiological qualifications at the time of
interpretation for the four physicians who provided positive readings, and
permissibly accorded determinative weight to Dr. Sargent's negative interpretation
of the most recent film based on Dr. Sargent's dual qualifications as a Board-certified radiologist and B-reader. Decision and Order on Remand at 2, 3;
Director's Exhibits 15-19; Woodward v. Director, OWCP, 991 F.2d 314, 17 BLR
2-77 (6th Cir. 1993); Sheckler v. Clinchfield Coal Co., 7 BLR 1-128 (1984).
We, therefore, affirm the administrative law judge's weighing of the x-ray evidence
of record, as based on substantial evidence, and we affirm his denial of benefits.
Accordingly, the Decision and Order on Remand of the administrative law judge
awarding benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
ROBERT J. SHEA
Administrative Law Judge
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Footnotes.
1) The miner filed his claim for benefits on May 13, 1975.
Director's Exhibit 1. The miner died in a work-related accident on December 26,
1977, Director's Exhibit 11, and claimant, the miner's widow, filed a survivor's
claim on February 7, 1978. Director's Exhibit 2.
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2) We note that claimant has the option to submit to the district
director new x-ray interpretations of the existing films with a request for
modification pursuant to 20 C.F.R. §725.310.
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NOTE: This is an UNPUBLISHED BLA Document.
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