Acord v. Eastern Associated Coal Corp., BRB 06-0136 BLA
| Decision Date | 30 November 2006 |
| Docket Number | BRB 06-0136 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | HIRAM J. ACORD Claimant-Respondent v. EASTERN ASSOCIATED COAL CORPORATION Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits of Thomas M Burke, Associate Chief Administrative Law Judge, United States Department of Labor.
James M. Phemister (Washington and Lee University School of Law Legal Clinic), Lexington, Virginia, for claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for employer.
Barry H. Joyner (Howard M. Radzely, Solicitor of Labor; Allen H Feldman, 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: McGRANERY, HALL, and BOGGS, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits (03-BLA-6585) of Associate Chief Administrative Law Judge Thomas M. Burke on a subsequent 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). Adjudicating the claim pursuant to 20 C.F.R. Part 718, the administrative law judge credited the parties' stipulation that claimant worked in qualifying coal mine employment for seventeen years and ten months. The administrative law judge found that the newly submitted evidence demonstrated that claimant had a totally disabling respiratory impairment pursuant to 20 C.F.R §718.204(b), and that, therefore, claimant had established a material change in conditions pursuant to 20 C.F.R. §725.309. Addressing the merits of entitlement, the administrative law judge found that claimant established the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a) and total disability due to pneumoconiosis pursuant to Section 718.204. Accordingly, benefits were awarded as of September 1, 2001, the month in which the claim was filed.
On appeal, employer argues that the administrative law judge violated the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), and 5 U.S.C. §556(d), as incorporated into the Act by 30 U.S.C. §932(a), by means of 33 U.S.C. §919(d) and 5 U.S.C. §554(c)(2), which requires “reasoned decisionmaking.” In support of this contention, employer asserts that the administrative law judge failed to resolve the conflict in the medical opinions and to provide an adequate explanation for preferring the opinions of Drs. Rasmussen, Cohen, and Doyle, who opined that claimant suffers from pneumoconiosis that renders him totally disabled from performing his last coal mine employment, over the contrary opinions of Drs. Branscomb and Zaldivar. In addition, employer argues that, in finding total respiratory disability established, the administrative law judge erred in finding a material change in conditions under Section 725.309 and in finding that claimant had affirmatively established entitlement to benefits. [2] Claimant has filed a response brief, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs, (the Director), as party-in-interest, has filed a response letter confined to one issue: whether the administrative law judge properly discounted the opinions of Drs. Branscomb and Zaldivar due to their reliance on evidence outside the record pursuant to 20 C.F.R. §725.414(3)(i). The Director urges the Board to reject employer's allegation of error. [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 the 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 and Grylls Associates, Inc., 380 U.S. 359 (1965).
Challenging the administrative law judge's weighing of the medical opinions on the issue of total disability under Section 718.204(b)(2)(iv), employer argues that the administrative law judge improperly discounted the opinions of Drs. Branscomb and Zaldivar because they relied on evidence outside the record. Employer asserts that the administrative law judge's application of the revised regulations was error because they are neither reasonable nor authorized by the Black Lung Benefits Act or the Longshore Act insofar as they adopt rules that are more restrictive than the Federal Rules of Evidence. [4] Employer's Brief in Support of Petition for Review at 16. The Director responds, asserting that employer's argument is “clearly wrong.” Brief for Director at 1.
The Director's position has merit. In Nat'l Mining Ass'n v. Dept. of Labor, 292 F.3d 849 (D.C. Cir. 2002), the court held that there was a rational basis for limiting evidence and noted, in particular, the broad authority the statute confers upon the Secretary to issue regulations to establish the rights to benefits. 30 U.S.C. §932(b). Id. Similarly, the Director points out that Congress empowered the Secretary to depart from specific requirements of the Longshore Act in 30 U.S.C. §932(a). Director, OWCP v. Nat'l Mines Corp., 554 F.2d 1267, 1273-74 (4th Cir. 1977). Letter from Director at 2. Furthermore, contrary to the implication of employer's argument, the revised rules do not set inflexible limits. See Nat'l Mining Ass'n, 292 F.3d at 873-4. The rules give administrative law judges discretion to consider additional evidence when a party establishes good cause for its admission. 20 C.F.R. §§725.414, 725.456(b)(1). The revised regulations limiting the submission of evidence reflect both a reasonable and proper exercise of the Secretary's authority under the Act. Nat'l Mining Ass'n., 292 F.3d at 873-74; Dempsey v. Sewell Coal Co., 23 BLR 1-47 (2004) (en banc).
In this case, the administrative law judge found that “Drs. Branscomb and Zaldivar relied, at least in part, on pulmonary function studies which were not in the record when making their determinations, ” and that Dr. Branscomb's assessment was also based in part on exercise arterial blood gas studies which were not in the record and that, therefore, their opinions assessing whether claimant has a totally disabling respiratory impairment were not well documented. Decision and Order at 8. Accordingly, the administrative law judge gave their opinions less weight. The administrative law judge's determination reflects a proper application of the revised regulations. See Harris v. Old Ben Coal Co., 23 BLR 1-98, 1-108 (2006) (en banc) (McGranery and Hall, JJ., concurring and dissenting). [5] Furthermore, as the administrative law judge correctly observed, the opinions of Drs. Branscomb and Zaldivar that claimant could perform his usual coal mine employment are significantly undermined by the condition they included: that he undergo a comprehensive pulmonary treatment program. See 20 C.F.R. §§725.457, 725.458; Trumbo v. Reading Anthracite Co., 17 BLR 1-85, 1-88-89 (1993); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989) (en banc); Carpeta v. Mathies Coal Co., 7 BLR 1-145, 1-147 (1984); Decision and Order at 8.
Employer argues that, in finding that the newly submitted evidence demonstrated total respiratory disability, the administrative law judge failed to weigh all of the contrary evidence, like and unlike, together when concluding that claimant established total respiratory disability pursuant to Section 718.204(b). Employer contends, therefore, that because the administrative law judge erred in finding that claimant established total respiratory disability, he also erred in finding that claimant demonstrated that one of the applicable conditions of entitlement had changed since the date upon which the order denying the prior claim pursuant to Section 725.309 was issued.
We disagree. In assessing whether claimant demonstrated total respiratory disability, the administrative law judge initially evaluated the evidence relevant to each subsection set forth in Section 718.204(b)(2)(i)-(iv). [6] Pursuant to Section 718.204(b)(2)(i), the administrative law judge found that because three out of five newly submitted pulmonary function studies yielded qualifying values, the preponderance of the pulmonary function study evidence demonstrated that claimant was totally disabled under this subsection. Decision and Order at 5. Pursuant to Sections 718.204(b)(2)(ii) and (iii), the administrative law judge found that claimant failed to demonstrate total respiratory disability because the preponderance of the newly submitted arterial blood gas studies were non-qualifying and there was no evidence of cor pulmonale with right-sided congestive heart failure. Decision and Order at 4-5. Pursuant to Section 718.204(b)(2)(iv), the administrative law judge relied on the opinions of Drs Cohen, Rasmussen, and Doyle, who opined that claimant was unable to perform his last coal mine employment from a respiratory standpoint, because these physicians' opinions were better supported by the evidence of record, including consideration of claimant's reduced pulmonary capacity reflected in the qualifying pulmonary function studies and his last coal mine employment which was heavy manual labor. Decision and Order at 8. Thereafter, the administrative law judge weighed together all of the newly submitted evidence relevant to Section 718.204(b)(2)(i)-(iv) and, within a rational exercise of his discretion, determined that the qualifying pulmonary function studies and “the well...
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