Bailey v. Hart Hat Coal Co., Inc.
| Decision Date | 27 February 2017 |
| Docket Number | BRB 15-0315 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | CHUCKY R. BAILEY Claimant-Respondent v. HART HAT COAL COMPANY, INCORPORATED and WEST VIRGINIA COAL WORKERS' PNEUMOCONIOSIS FUND Employer/Carrier- Petitioners 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UNPUBLISHED OPINION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 Theresa C Timlin, Administrative Law Judge, United States Department of Labor.
Christopher M. Green (Jackson Kelly, PLLC), Charleston, West Virginia, for employer.
Before: BOGGS, GILLIGAN and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
RYAN GILLIGAN Administrative Appeals Judge.
Employer appeals the Decision and Order Awarding Benefits (2011-BLA-05493) of Administrative Law Judge Theresa C Timlin, rendered on a subsequent claim filed on September 28, 2009, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act).[1] The administrative law judge found that claimant was entitled to the irrebuttable presumption of total disability due to pneumoconiosis, based on evidence establishing the existence of complicated pneumoconiosis pursuant to 20 C.F.R. §718.304. While the administrative law judge did not find complicated pneumoconiosis, based on the x-ray or CT scan readings when considered in a vacuum, she did find that they established the presence of a mass in claimant's right upper lobe large enough to meet the statutory definition of the disease. Weighing the evidence as a whole, she then credited Dr. Gaziano's medical opinion that the mass is complicated pneumoconiosis as the most thoroughly reasoned opinion on its etiology, based on the totality of the record. Accordingly, she awarded benefits.
On appeal, employer maintains that the manner in which the administrative law judge weighed the evidence is irrational and that her credibility determinations do not satisfy the Administrative Procedure Act (APA).[2] We disagree.[3] Prior to coming to her conclusion, the administrative law judge rationally weighed the items from the different statutory categories of evidence relevant to complicated pneumoconiosis, and she fully considered whether evidence from one category supports or undercuts evidence from other categories. This is exactly the type of analysis the statute requires in mandating that “all relevant evidence shall be considered.” 30 U.S.C. §923(b); see also Westmoreland Coal Co. v. Cox, 602 F.3d 276, 285-87, 24 BLR 2-269, 2-282-84 (4th Cir. 2010). Accordingly, we affirm.[4]
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, rational, and in accordance with applicable law.[5] 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).
Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), as implemented by 20 C.F.R. §718.304 of the regulations, provides that there is an irrebuttable presumption of total disability due to pneumoconiosis if the miner suffers from a chronic dust disease of the lung which: (a) when diagnosed by chest x-ray, yields one or more large opacities (greater than one centimeter in diameter) classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, is a condition which would yield results equivalent to (a) or (b). 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304. The administrative law judge here addressed each of these categories of evidence individually prior to weighing them together as a whole.
The administrative law judge first considered the eight ILO-classified readings[6] of three x-rays, dated December 16, 2009, June 20, 2011, and April 19, 2012, in the record. Decision and Order at 9-10.
Dr. Rasmussen read the December 16, 2009 x-ray as positive for complicated pneumoconiosis while Dr. Shipley read it as negative.[7] Director's Exhibits 11, 31. Dr. Rasmussen is a B-reader; Dr. Shipley is dually-qualified as a Board-certified radiologist and B reader. Id. The administrative law judge determined that the x-ray was negative based on Dr. Shipley's dual credentials. Decision and Order at 9.
Dr. Alexander, a dually-qualified radiologist, read the June 20, 2001 x-ray as positive for complicated pneumoconiosis. Claimant's Exhibit 1. He wrote on the ILO form: “[a]n area of coalescence is present in the right upper zone, and there is a 15 x 5 [millimeter] large opacity in the right upper zone consistent with Category A complicated pneumoconiosis.” Id.
Dr. Rosenberg, a B reader, indicated that the June 20, 2011 x-ray showed small opacities consistent with simple pneumoconiosis in the upper, lower, and middle zones, but he found no large opacities that he considered to be consistent with complicated pneumoconiosis. Employer's Exhibit 1. He noted diffuse pleural thickening, scarring in the right apex, and a rounded density in the right lower lobe. Id. Dr. Shipley also read the film as negative for “large opacities” of complicated pneumoconiosis, but he observed a 3.0 centimeter rounded nodule at the base of the right lung that he opined could represent a malignancy. Employer's Exhibit 3. The administrative law judge determined that the two negative readings of the June 20, 2011 x-ray outweighed the sole positive reading. Decision and Order at 10.
Dr. Gaziano, a B reader, identified a Category A large opacity on the April 19, 2012 x-ray and noted the presence of a rounded density at the base of claimant's right lung, which he opined could represent possible carcinoma. Director's Exhibit 19; Claimant's Exhibit 4. Dr. Shipley read this film as negative for complicated pneumoconiosis, but identified a 2.8 centimeter soft tissue nodule at the right lung base. Employer's Exhibit 5. Based on Dr. Shipley's dual credentials, the administrative law judge found that the April 19, 2012 x-ray was negative for complicated pneumoconiosis. Decision and Order at 10.
Given these findings, the administrative law judge concluded that claimant failed to establish complicated pneumoconiosis by a preponderance of the x-ray evidence under subsection (a), 20 C.F.R. §718.304(a), alone. Decision and Order at 10.
Claimant underwent a CT guided biopsy of a pulmonary mass in the right lung, performed by Dr. Setliff on August 13, 2009. The biopsy report stated, inter alia, “no obvious malignancy” and “focal mild anthracotic change.” Claimant's Exhibit 3. Because Dr. Setliff's credentials are not in the record, however, the administrative law judge was unable to determine whether he was “qualified to render an opinion on the issue of pneumoconiosis, ” and she therefore gave “little overall weight to the biopsy report.” Decision and Order at 10. The administrative law judge thus concluded that claimant did not establish complicated pneumoconiosis under subsection (b), 20 C.F.R. §718.304(b), alone. Id.
In addition to the ILO-classified x-ray readings, the administrative law judge considered evidence from claimant's treatment records, CT scan evidence, and medical opinion evidence under subsection (c). She found that claimant's hospital records “neither support nor weigh against a finding that [c]laimant has simple, complicated, or both types of pneumoconiosis.” Decision and Order at 15; Director's Exhibit 22.
In reviewing the CT scan evidence, the administrative law judge observed that “the doctors discussed masses in two distinct areas of the lung.” Decision and Order at 13. Dr. Ahmed read a CT scan dated July 24, 2009 as showing a “linear oriented bi[-]lobed density in the right upper lobe measuring 15 millimeters[, which] could be part of complicated pneumoconiosis.” Claimant's Exhibit 3 (emphasis added). Dr. Ahmed also saw a 2.2 centimeter irregular node in the lower right lung. Id.
The administrative law judge noted that Dr. Shipley, on the other hand, “described only the nodule in the lower right lung” when he reviewed CT scans dated June 11, 2003, July 24, 2009, and February 5, 2010. Decision and Order at 13; Employer's Exhibit 5. Dr. Shipley concluded that the three CT scans show “moderately extensive simple coal workers' pneumoconiosis.” Employer's Exhibit 5. Although Dr. Shipley noted “flattened nodular lesions” that “did not have the typical appearance of large opacities” of coal workers' pneumoconiosis, he did not specify the location and size of those nodular lesions. Id.
Because Drs. Shipley and Ahmed are both Board-certified radiologists, the administrative law judge gave their conflicting readings “equal weight based on their qualifications.” Decision and Order at 13. She therefore determined that the CT scan evidence “established simple, but not complicated, pneumoconiosis” under subsection (c), 20 C.F.R. §718.304(c).[8] Id.
Turning to the medical opinion evidence, the administrative law judge weighed the opinions of Drs. Rasmussen, [9] Rosenberg, Crisalli and Gaziano. Decision and Order at 16-23. In his written report, Dr. Rosenberg opined that claimant does not have complicated pneumoconiosis because he did not observe a coalescence of micronodules merging into a large opacity on claimant's chest x-ray. Employer's Exhibit 1. Dr. Rosenberg also supplemented his written report with deposition testimony, however, wherein he repeatedly acknowledged the scarring in claimant's upper right zone that other physicians classified as complicated pneumoconiosis. ...
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